Appeal of Wheatland

Opinion, Mr. Justice Clark : The facts of this case are not in dispute; they are stated in the paper book, furnished at the argument, substantially as follows: [45] October 12, 1885, upon the return of a writ de lunático inquirendo to the Common Pleas of Montgomery county, George Blake was found to be a lunatic, and George Hand was appointed the committee of his estate. October 24, 1885, the committee presented a petition to the Common Pleas asking for an order to sell the lunatic’s real estate to pay his debts, and for maintenance, alleging that he possessed no personal estate, and the sale was ordered. March 11, 1886, the committee made return that the real estate had been sold for 81,000, and the sale was confirmed. At the time of the application for the sale, the debts of the lunatic amounted to §992.25, besides a lien for paving, done by the borough of Hatboro, where the real estate was located, amounting to 8168.57. May 7, 1886, tire committee filed an account in the Common Pleas, which, after credits for the expenses of the sale and the payment of the liens, left a balance of §487.08 for distribution among the creditors, their claims amounting to §627.90. June 16,1886, exceptions were filed by certain of the creditors, and June 21, 1886, J. Wright Apple, Esq., was appointed auditor to dispose of said exceptions, and make distribution. July 17, 1886, while the auditor was in the discharge of the duties of his appointment, George Blake, the lunatic, died; and thereupon, Hiram Blake and George E. Blake, executors under the will of George Blake, deceased, dated April 29,1882, duly proven since his death, appeared before the auditor and claimed that the entire fund should be distributed to them, the will distributing the estate to certain of his children. The auditor proceeded with the audit, and there were probated before him the claims of all the creditors of the lunatic. Before the auditor had filed his report he died, and J. P. Hale Jenkins, Esq., was appointed to his place and stead. September 6, 1887, the auditor filed his report, distributing the fund in the committee’s hands, pro rata, among George Blake’s creditors. The executors filed exceptions to the report, alleging error in not awarding the funds to them; the court sustained the exceptions and directed the auditor to award the fund to the executors. The auditor thereupon filed his supplemental report in accordance with the opinion of the court, awarding the fund to the executors. Ellwood M. Wheatland, the principal creditor of George Blake, deceased, filed exceptions [46] to the action of the court, which were overruled, and the report confirmed; whereupon Wheatland took out this appeal. The only question for our consideration, in this case, is whether or not the balance in the hands of the committee on settlement of his accounts was, at the death of the lunatic, rightly awarded to his executors to be administered as assets of his estate. It is contended on part of the appellant, that the committee held this fund upon the terms of a trust, dver which the Common Pleas had full jurisdiction, that the Common Pleas had the power of distribution upon the footing of that trust, and that the distribution having been partially proceeded with, should have been made to and among the creditors directly and not to the executors. The committee of a lunatic is, by the act of June 13, 1836, P. L. 597, intrusted with the management of his entire estate, real and personal; it is his duty to apply so much of the income thereof as shall be necessary to the payment of his just debts and engagements, to the support and maintenance of the lunatic and his family, and to the education of his minor children. If the income shall not be sufficient for the purposes stated, he may, under the direction of the Court of Common Pleas, having jurisdiction of his accounts, apply so much of the principal of the personal estate as may be necessary. If the personal estate shall not he sufficient the court may make an order authorizing the committee to sell or mortgage a part or the whole of the real estate. In such case, the expediency of selling a part or the whole, the terms of sale, and the amount of security required, are all matters for the determination of the court before the order issues, and upon a return, if the order of sale is confirmed, upon the committee giving security to the satisfaction of the court for the faithful application of the proceeds, according to the duties of his trust. Thus it will be seen that the sale of the real estate is under the immediate control and supervision of the court; indeed, the committee is but the receiver of the court, from which he derives his powers, and the fund, when it comes into his hands, is a trust fund as much in custodia legis as if deposited in bank to its credit, or locked up in the strong box of the court, under the care of its officers : Eckstein’s Est., 1 Pars. 59. This fund, as wé have [47] seen, is, in tbe first instance, applicable to the payment of his just debts. This was one of his specific trusts, declared by law, subject to which the committee held the fund in dispute. At the death of the lunatic the terms of the trust expired, but it still remained for the committee to settle his accounts, in order that the trust moneys in his hands might be applied according to the terms and conditions of the trust. The fund in his hands, as we have said, was in the custody and control of the court, and it was within the power and it was the duty of the court to see that it was properly applied. It is certainly true, as a general rule, that the Orphans’ Court alone has authority to ascertain the amount of a decedent’s estate and to order its distribution among those entitled to receive it: Whiteside v. Whiteside, 20 Pa. 473; it is equally true that the Court of Common Pleas has not power to decree distribution of a fund in the hands of a trustee among the heirs or next of kin of the deceased cestui que trust: Johnson’s Est., 2 Wh. 119; it must be awarded to the personal representatives, in order that after administration it may be distributed under the direction of the Orphans’ Court, according to law: Frankenfield’s App., 11 W. N. 373. But when the decedent’s estate consists in part or in whole of moneys or property held upon the terms of a trust, the personal representatives can take only what remains after the trust is executed or fully settled; as in case of the death of one of two or more partners, his executors or administrators are only entitled upon the footing of an account after the payment of the joint debts: Story on Part., 367, 557. In this ease the fund was raised to be applied to a specific purpose; it was in the custody of the court, and was actually in process of distribution to the objects and purposes for which it was created, and we are of Opinion that the proceeding was not stayed or the course of distribution altered by the death of the cestui quo trust. The decree of the Common Pleas is reversed, and the record remitted in order that distribution may be made in accordance with this opinion; the appellees to pay the costs of this appeal.