Weimer v. Karch

Opinion by Mr. Chibe Justice Paxson, The only specification of error which it is important to consider is the second, which alleges that the learned court erred in setting aside the auditor’s report, because proceedings were conducted in the common pleas instead of the orphans’ court. The learned judge below set aside the proceedings in the common pleas with evident reluctance, but felt himself constrained to do so by section 33 of the act of February 24,1834, P. L. 77, which provides that: “ In all cases where property, real or personal, of a decedent, is sold upon an execution, and more money raised than is sufficient to pay off liens of record, the balance shall be paid over to the executor or administrator for distribution; but before any such payment shall be made such executor or administrator shall give bond to the satisfaction of the court, conditioned for the legal distribution of such money, provided always that such money shall be distributed as the real estate, of which it is the proceeds, would have been.” It is manifest that much money has been wasted, and labor [389] incurred in vain, in this attempt to distribute a dead man’s estate in the common pleas. As the proceedings below were invalid lor want of jurisdiction, it is unnecessary to discuss any of the details. When the case gets into the orphans’ court, where it properly belongs, it is possible that some of the proceedings of the common pleas may be utilized by the former court for the saving of time and expense. There appears to have been a feigned issue in the common pleas which has been twice tried. As the object of tbis issue was merely to inform tbe conscience of the court, we see no reason why it may not be used in the orphans’ court for that purpose with the same force and effect as if that court had originally directed the issue and sent it to the common pleas for trial, especially in view of the fact that eaeh court is held by the same judge. We are aware that some of the earlier cases would seem to give countenance to the doctrine that in certain exceptional cases a proceeding like this might be sustained, but those were the days when the orphans’ court was in its swaddling clothes, and its jurisdiction limited. It is not so now. It has grown to the full stature and dignity of a court of exclusive jurisdiction in all that concerns its business. It was said by tbe late Chief Justice Black, in Whiteside v. Whiteside, 20 Pa. 473 : “ The exclusiveness of its jurisdiction, and the conelusiveness 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 be anything besides death which is not to bo 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.” To the same point, and equally emphatic, is the language of this court in Hammett’s Appeal, 83 Pa. 392. And in Phillip’s Administra tors v. Railroad Company, 107 Pa. 472. Much as we regret the delay, confusion and expense caused by this mistake, we do not see our way clear to override an act of assembly in order to enable the parties to avoid the consequences of it. The decree is affirmed, and the appeal dismissed at the costs of the appellant.