Musselman's Appeal

Mr. Justice Paxson delivered the opinion of the court, October 2d 1882. We are met at the threshold of this ease with the question of jurisdiction. It is raised both by demurrer and special plea. We may well dispense with the discussion of the regularity of either, as the want of jurisdiction may be taken advantage of at any stage of the cause: Black’s Ex’r v. Black’s Ex’r, 10 Casey 354; Fidelity Trust Co.’s Appeal, 11 W. N. C. 264. The question is not new. It was squarely decided in Van Dyke’s Appeal, 31 Legal Intelligencer 69; 4 W. N. C. 283. It was there held that where letters testamentary upon the estate of a resident of New Jersey were granted in that state to a resident of Pennsylvania, the estate must be settled in New Jersey, and the courts of Pennsylvania have no jurisdiction over the account of the executor; and further, that no proceedings will lie in Pennsylvania either by an administrator de bonis non cum testamento annexo, or by a legatee and eestuis que trust under the will, to charge such an executor or his representatives with assets of the New Jersey estate until an account has been settled in New Jersey showing a balance in his hands. The case in hand does not essentially differ from Van Dyke’s Appeal. William P. Waugh, whose estate is in controversy, was a citizen of North Carolina, residing in Wilkes county, where he died in 1852, leaving a considerable amount of property and a last will and testament, wherein he appointed his brother, John Waugh, one of his executors, who proved the will and took out letters testamentary in North Carolina. The testator gave his residuary estate to the said John Waugh, subject, however, to certain trusts — the payment of certain legacies to the testator’s nephews and-nieces, &e. ' John Waugh lived in Adams -county, Pennsylvania. It is alleged that the breaking out of the rebellion interfered with the settlement of the estate and caused a large loss of property, so that no settlement of the estate has ever been made in the state of North Carolina or elsewhere. This bill in equity was filed by the eestuis quo trustent of the residuary estate, in the Common Pleas of Adams county, to compel the representatives of John Waugh, who is now deceased, to account for the said residuary estate and pay [170] over the same to the parties legally entitled thereto. The court below sustained the bill and made a decree in accordance with the prayer thereof. If there is anything settled in the law of Pennsylvania it is the exclusive character of the jurisdiction of the . Orphans’ Court. It was said by Black, C. J., in Whiteside v. Whiteside, 8 H. 473: “ The exclusiveness of its jurisdiction and the con-elusiveness of its decrees have been placed by the Acts of assembly and the decisions of this' court upon a foundation which cannot be shaken. If there is anything beside death which is not to be doubted, it is that the Orphans’ Court alone has authority to ascertain the amount of a decedent’s property and order its distribution among those entitled to it.” There are many later cases which affirm this doctrine, and which it would be useless to refer to in, detail. Anotliér principle, equally familiar and equally well settled, is that an executor or administrator can be compelled to settle his accounts only within the jurisdiction from which he derives his authority. This is not only true as between the states, but it applies with equal force between the different counties of the same state. Thus the Orphans’ Court of one county in this state has no authority or jurisdiction over the accounts of an executor of another county whose letters testamentary were properly granted by the register of wills of the latter county. No authority is needed for so plain a proposition. Indeed, it is not disputed by the appellees. Their learned counsel says, in his printed argument: “ The argument and authorities cited by the appellant in relation to the jurisdiction and powers of the Orphans’ Court are misapplied. The complainants have nothing to do with John Waugh as executor of W. P. Waugh, but seek relief against him as trustee of the residue after hia duties in that capacity were fully performed.” Just here is the point of the appellee’s case. It needs but an examination of the master’s report to show how vain is the effort to ignore this question of jurisdiction. The learned master proceeds to state and settle an account against John Waugh as executor of William P. Waugh. He charges him with the amount of the estate, so far as lie has been able to ascertain that it came into the hands of the executor, and credits him with the payment of divers sums to legatees and others, and allows him $1,000 as commissions, which the court below increased to $3,000. Upon exceptions filed, the court below surcharged the executor with several sums which the master had not allowed. All this was a necessary consequence of sustaining the bill. The appellees could not move a step without a settlement of John Waugh’s account as executor, for until that was done how could the [171] amount of the residuary estate be ascertained, or whether there was a residuary estate 2 This was one of the difficulties in Van Dyke’s Appeal. There the testator, as we gather from the imperfect report of the case, bequeathed one-fourth of the residue of his estate to F. A. Van Dyke, one of his executors in trust-for the relief of and support of such persons as the testator should direct and name in and by a separate letter of instructions directed to him. The appellants commenced proceedings in the Orphans’ Court of Philadelphia, where F. A. Van Dyke resided, to obtain the benefit of this fourth of the estate; but upon appeal to this court it was held that until a settlement of the accounts in New Jersey the amount, if any, of the residuary estate could not be ascertained, and the proceeding fell. ’ Until so ascertained it did not become a debt of F. A. Van Dyke, and for which he could have been sued personally.' Upon this point it was said, per curiam: “It is argued that F. A. Van Dyke was at his death personally responsible to these claimants under the trust for the one-fourth of all the moneys of the estate of James C. Van Dyke that came into his hands, and therefore the executors of Fi A. Van Dyke can be held to payment. This would be so if the trust had taken effect and the one-fourth had been set apart to him in his lifetime under the will of James C. Van Dyke, of New Jersey. But there is no évidence of an execution of this trust of James-C. Van Dyke’s will, or that F. A. Van Dyke held the fund as trustee. His responsibility for the money which came into his hands was as executor of James O. Van Dyke, and not as trustee of a divided one-fourth of the residue. The claim against him for these funds was not Ssrsonal, but a claim against him as executor of James C. Van yko, whose estate was to be settled in New Jersey, where the will was proved and letters issued to the executors under the will, including F. A. Van Dyke. No personal action as for a debt, therefore, lay against F. A. Van Dyke in his lifetime, and none can now be supported against his executors.” So we say here. No personal action will lie against the executor of William P. Waugh for any portion of the residuary estate, or for a legacy charged thereon, until it be first shown that there is a residuary estate, and that the same passed into the hands of John Waugh as trustee thereof. That John Waugh received assets of the estate of John P. Waugh is not to the purpose. He received them as executor; his responsibility for said estate is as executor, and not as trustee of the residuary estate. The appellees must first show that there was a residuary estate, and the amount of it. This can only bo done by compelling an account in the proper courts of North Carolina. When that is done, and it is legally ascertained that John [172] "Waugli had in his possession a sum of money, or certain property, as trustee of the residue under the will of John P. Waugh, they can probably sustain a suit in any forum where they can find the personal representatives of John Waugh or his property. The decree is. reversed, and the bill dismissed at the costs of the appellees.