Pierce v. Livingston

Mr. Justice Sharswood delivered the opinion of the court, This was an action on the case, by the administrator de bonis non cum-testamento annexo of George Sickman,' Sr., against the administrator of George Sickman, Jr., to recover a sum of $1250, directed by the will of George Sickman, Sr., to be paid by his son and devisee of his real estate, George Sickman, Jr., to his executor in trust, for certain purposes. The plaintiff below claimed to recover this sum of money, as the representative and successor of the executor of George Sickman, Sr., to whom it was to be paid. The only question on the record is upon the reserved point, whether the court below had jurisdiction of the action. The sum of money, or legacy, in question is not only charged upon the real estate devised to George' Sickman, Jr., but it is exclusively charged upon it. It is the only fund of the testator out of which it could be paid. He first, after a few small personal legacies, bequeathed all the balance of his personal property, one-third to his wife, and the remaining two-thirds to be equally divided amongst his children.. . He then devised all his real estate to his son, George Sickman, Jr., upon the express condition that he should pay certain sums to his children, in a certain order, and at prescribed times. He then provides: “ I will that there remain in the hands of my executors, to be paid by my son, George Sickman, Jr., the sum of $1250 over and above the above legacies, the interest on which is to commence at the time of my decease, at the rate of four per cent, annually, and to be paid to my wife Susannah, yearly, during her natural life.” By the 59th section of the Act of February 24th 1884, Pamph. L. 84, it is provided, that “ when a legacy is or shall be hereafter charged upon, or payable out of, real estate, it shall be lawful for the legatee to apply, by bill or petition, to the Orphans’ Court having jurisdiction of the accounts of the executor of the will by which such legacy was bequeathed ; whereupon such court having caused due notice to be given to such executor, and to the devisee, or heir, as the case may be, of the real estate charged with such legacy, and to such other persons interested in the estate as justice may require, may proceed, according to equity, to make such decree or order touching the payment of the legacy out of such real estate as may be requisite and just.” It is very well settled that the jurisdiction of the Orphans’ Court under this section of the act is exclusive: Craven v. Bleakney, 9 Watts 19; Downer v. Downer, Ibid. 60; Strickler v. Sheaffer, 5 Barr 240; Harner v. Hasbrouck, 5 Wright 183; Burt v. Herron’s Executors, 16 P. F. Smith 400. It may be that when there is a primary fund of personal property for the payment of the legacy, and the charge on the real estate is secondary and [102] ancillary, an action under the 50th section of the Act of February 24th 1884, Pamph. L. 82, against the executor, may be maintained for the recovery of such legacy out of the personal assets of the testator: Breden v. Gilliland, 17 P. F. Smith 34. But in the case before us the legacy or sum of money directed to be paid was charged exclusively on the real estate. A judgment against the administrator of George Sickman, Jr., must have been levied of the real estate devised. That was the only part of the property of George Sickman, Sr., that could have been made available. It is clear that if this action is sustained, the jurisdiction of the Orphans’ Court will be taken away by indirection. Thus the beneficial design of the statute, which was to vest in the Orphans’ Court the large powers of a court of equity in all such cases, would be entirely disappointed. We must repeat, what has been said more than once already, that where there is a judgment in the court below upon a reserved point, it ought always to be accompanied with a written opinion. Judgment reversed. And now, judgment for the defendant below upon the reserved point.