Socher's Appeal

,Mr. Justice Stereett delivered the opinion of the court, January 7th 1884. The cardinal question in this case is whether the facts established by the pleadings and evidence fairly bring-it within the equity jurisdiction of the court below. That question was promptly raised, in-limine, by demurring to the bill, and has been strenuously insisted on throughout. If it be true, as claimed by the learned counsel for appellant, that the appellees have a full, complete and adequate remedy at law, the want of equity jurisdiction must be conceded. The learned Master’s conclusions of fact, and the law applicable thereto, are very fully and clearly stated in his report, and, for reasons that will hereafter appear, the several specifications of error relating thereto are not sustained. The facts, so far as they are essential to a proper consideration of the question of jurisdiction, are substantially these: In March 1870, Alexander Wirth, father of the beneficial plaintiffs below, died seised of certain real and personal estate, leaving a widow, Catharine Wirth, and five children, some of whom are minors. A few days before bis decease he made a will, which was duly probated, whereby lie devised and bequeathed all bis real and personal estate, with a few unimportant exceptions, to his wife, who immediately took possession of the same, collected the rents, etc., and out of the income maintained and educated the children for a period of two years or more. The real estate, thus devised to Mrs. Wirth, consisted of four pieces of property in the city of Pittsburgh, referred to [620] as the homestead lot on Larimer avenue, a block of lots on Begley Bun road, five houses and lots at corner of Eortysecond and Willow streets, and lot on Liberty street. In July 1871, the widow sold and conveyed the last mentioned lot to Frederick Henglesberg for $1,225, part of which was paid in cash, and for the residue, $1,000, she took a mortgage which she held until her death in June 1881. In February 1872, Mrs. Wirth married the appellant, George Socher, with whom she lived until the time of her decease above stated. In September 1880, she made a will, afterwards duly probated, by which she devised and bequeathed to her husband, George Socher, in fee simple, the homestead lot, on Larimer avenue, the use and occupation of all the rest and residue of the estate until her son Adam Wirth should attain the age of twenty-one years, and all her personal estate absolutely. Immediately after her decease, appellant, as her devisee, took possession of the real and personal estate above mentioned, collected the rents, the purchase money mortgage above mentioned, etc., and continued to use and enjoy the same as his own until the date of the decree. In March 1870, when Alexander Wirth was about making his will, lie informed the scrivener that he desired to leave the homestead lot to his wife and the residue of his real estate to his children ; whereupon he was urged by the scrivener and his wife “ to leave all the property to her, so as to avoid trouble and expense in case it should become necessary to sell or mortgage any portion of it. She assured him that no part of the property should be lost to the children through her fault; that she would hold the property in trust for the children, that it should be disposed of just as he had intended' when he wanted the will made as he first suggested.” After some hesitation the testator consented that the will should be so written, and he accordingly devised all the property to his wife as set forth in the will; but, as to all the real estate, except the homestead lot, the devise to her was upon the distinct promise and agreement, and in trust and confidence that she, the said Catharine, would give their children, the plaintiffs below, the benefit of the property, and convey or devise to them such portion thereof as she should not use in the maintenance of herself and them. A careful examination of the testimony convinces us that the Master was clearly right in finding the facts above stated. The objection that the alleged trust cannot be established by the testimony of a single witness is not well taken. Appellant’s answer contains no such denial of the trust alleged in the bill, as makes it evidence for himself. In his formal denial of the trust, he speaks not of his own knowledge, but from information and belief only. It is well settled that such. an [621] answer is not evidence, it is pleading merely, and puts in issue the facts in dispute: Eaton’s Appeal, 16 P. F. Smith 483; 3 Greenleaf’s Ev. § 287. The well recognized rule in equity that a responsive answer must be overcome by the testimony of two witnesses, or one witness and corroborating circumstances, has no application to such a case as is here presented. Like every other fact averred in the bill and not expressly denied by the defendant of his own personal knowledge, the alleged trust might well be established by the testimony of a single witness; and, in this case it was fully established by the clear, distinct and positive testimony of an entirely disinterested, intelligent and trustworthy witness. Assuming then that the trust, which is the very essence of the case, was clearly established, it is scarcely necessary to say that a flagrant breach of it has been conclusively shown and part of the trust property, together with the proceeds of other portions thereof, traced into the bands of appellant, who is a mere volunteer, standing in no better position than the original trustee would occupy if living. While it is practically conceded that there ought to be and is a remedy for such a wrong as that complained of by appellees, it is said they have mistaken their remedy, that they should have resorted to an action of ejectment, etc. It may be true that as to a portion of the trust property, their rights might be successfully asserted in an action of ejectment, but as to the residue, including the proceeds of the Liberty street lot, sold by .Mrs. Wirtli in her lifetime, nothing could be accomplished by a possessory action at law. The legal title to the Liberty street lot being in Mrs. Wirtli, lier vendee, for value and without notice.of the trust, took a good title, and the only remedy the appellees had was to follow the proceeds in the bands of appellant. It is not a sufficient answer to say that their right to the money collected by him may be asserted in the Orphans’ Court against the estate of his deceased wife. The purchase money mortgage never in fact belonged to her; it was no part of her estate, and hence the jurisdiction of the Orphans’ Court never attached thereto. It is very evident therefore, that, as to the entire claim of the appellees, an action of ejectment would be neither a full, complete nor adequate remedy; and, they should not be compelled to split up their claim because part of it might be successfully asserted in one form of action, and the residue in another. While we think the jurisdiction of the court should be sustained on the ground above suggested, that is not the only ground upon which it should be based. Eor the reasons given and authorities cited in support thereof by the learned master, we are of opinion that it is clearly sustainable on the broader ground, stated at length in his report. [622] We are not satisfied, there was any error in stating the account on which the final decree is based, and lienee the several specifications of error relating thereto are not sustained. Decree affirmed and appeal dismissed at the costs of the appellant.