Orphans' Court of Montgomery County.

ESTATE OF MORO PHILLIPS, Dec'd.

Except in the case of adjoining tracts in different counties, the Orphans' Court of the county where lands of a decedent are situate has jurisdiction to make partition of the same, although the decedent was domiciled in another county, and died seized of land in more than one county.

RULE for partition.

The facts of the case fully appear in the opinion of the court delivered March 11, 1889, by WEAND, J.

The testator at the time of his death resided in the city of Philadelphia, seized of real estate in the counties of Philadelphia, Delaware and Montgomery. The petition prays for partition of that part of the land situate in this county. The answer sets forth the fact of decedent's domicile in Philadelphia, and denies the jurisdiction of this court without an order and decree of the Orphans' Court of Philadelphia. A similar petition presented in Philadelphia for partition of the land lying there had been refused by that court, with leave granted to amend by including all decedent's land. In order to determine our authority in the matter, an examination of the various acts of Assembly bearing upon the subject will be necessary. The act of March 29, 1832, Sec. 36, P. L. 201, Purd. 537, confers power upon the Orphans' Court of the county where the real estate of a decedent is situate, to make partition, etc., but provides in Sec. 44, "when the lands, in respect to which application for partition shall be made to the Orphans' Court aforesaid, lie in one or more adjoining tracts in different counties, it shall be lawful for the Orphans' Court of the county in which the principal mansion is situate, or if there be no mansion or building on the lands, then the court of the county in which the greatest part of the land lies," to proceed, etc. As there is nothing before us to show that the lands for which partition is asked are "adjoining tracts," this act undoubtedly gave us jurisdiction.

The next act in order of time is the act of February 20, 1854, Sec. 1, P. L. 89, Purd. 539, which provides: "All the courts of this

Phillips Estate.

commonwealth now having jurisdiction in matters of partition shall have power to entertain suits and proceedings, whether at law or in equity or otherwise, for the partition of real estate, etc., although the lands to be divided or recovered may lie in one or more counties of this commonwealth; provided, that such proceedings intended to embrace lands in more than one county shall be brought only in the county where a decedent whose land is to be divided had his domicile, or where the homestead or larger part of the estate in value shall be situated," etc., here again distinctly recognizing jurisdiction of the court where the lands are situate, unless the proceeding is intended to embrace lands in more than one county.

The evident purpose of this act was to confer the same power upon the Court of Common Pleas with reference to adjoining lands lying in more than one county as was then vested in the Orphans' Court by the act of 1832, and also to provide for partition in one proceeding where the land was in several counties, for which no provision has been made in the earlier acts. Under these two acts there was apparently a complete system in partition.

Under the

act of 1832, where the lands were "adjacent and in different counties," the Orphans' Court of the county where the "principal mansion," etc., was situate, had exclusive jurisdiction.

By the act of 1854, where the proceeding was to embrace land in more than one county, either the Common Pleas or the Orphans' Court of the domicile had jurisdiction; and under both acts, where the proceeding did not embrace land in more than one county, the jurisdiction is expressly conferred upon the Orphans' Court "of the county where real estate of a decedent is situated." Under this legislation there would, therefore, seem to be no difficulty in the matter; but it is claimed that the act of April 17, 1856, Sec. 1, P. L. 386, Purd. 539, confers exclusive jurisdiction in all cases upon the court of the domicile, either to make partition of all the lands, no matter where situate, or to order and decree that the courts of the county where separate tracts lie may do so.

This act is a supplement to the act of 1854, and defines the true intent and meaning of it to be that "it shall include and embrace all proceedings in partition instituted or which may be instituted in the Orphans' Court in any of the counties of this commonwealth for the partition or valuation of the real estate of any decedent, in all cases where said real estate is situated in two or more counties in this

Phillips Estate.

commonwealth; provided, that nothing in this act, or the act of 1854, shall be so construed as to prevent the parties interested in the partition of the real estate of any decedent from instituting proceedings in partition in the Orphans' Court in each county where such real estate is situate, except in cases where such real estate consists of adjoining tracts or parcels of land situate in different counties, if the Orphans' Court of the county in which the proceedings in partition are required by the said act relative to suits in dower and partition to be had, shall so order and decree."

Keeping in view the fact that the act of 1854, whilst conferring jnrisdiction upon all the courts to make partition within their respective counties, prohibited them from so doing where the proceeding embraced land in more than one county, the evident object and purpose of this last legislation was to revoke the exception, and thus confer upon each court of the county where any of the lands were situate power to make partition of the whole without proceeding in the court of the domicile; still permitting the parties, however, to institute proceedings for the division of separate tracts in the Orphans' Court in each county where such real estate is situate if the court so order and direct, except in the case of adjoining tracts or parcels of lands situate in different counties, in which cases the jurisdiction was as provided by the act of 1832. To further show that this was the intent and purpose of the act, it provides for the service of all writs, processes, etc., by the Sheriff of the county in which such proceedings in partition have been instituted; and the jurors for making such partition or valuation shall be selected from the same county in which such proceedings are instituted. The act, instead of being a restraining, is an enlarging or enabling act, intended to extend the provisions of the law to which it is a supplement. The third section of the act validates all proceedings in partition in the Orphans' Court before then had and adjudicated for lands lying in two or more counties, thus showing that the whole purpose of the act referred to proceedings had and to be had in one court for partition of lands lying in several counties. Without this construction the act is meaningless, as the act of 1854 was plain and needed no explanation.

That this view of the law is correct is also shown by the act of May 14, 1874, P. L. 156, Purd. 1296, construing said act and extending jurisdiction of the courts therein. The first section declares that the true intent, etc., of the act of 1854 and its supplement "shall include

Phillips Estate.

and embrace all suits, whether at law or in equity, instituted or to be instituted, in the Court of Common Pleas or Orphans' Court of any county of this commonwealth" for partition, etc.; and by Sec. 2, providing, "Nothing contained in this act or the acts to which it is a supplement shall be so construed as to prevent any tenant in common or joint tenant of real estate situated in two or more counties of this commonwealth from bring a separate suit, either at law or in equity, in either or any of such counties, for partition or valuation of so much of such real estate as is situated therein, except in the case where such real estate consists of single tracts lying in adjoining connties." Here again we have a construction of the act of 1854, and by the second section reaffirming the authority and power of the various courts, except in the case of single tracts lying in adjoining counties.

The constitutionality of this act may well be doubted under the rulings of the Supreme Court in the case of Titusville Iron Co. vs. Keystone Oil Co., 45 Leg. Int., 446. If constitutional, it would again confirm our authority; but even if we exclude it from our consideration, we think that under the other acts cited we have jurisdiction to entertain this proceeding. We fail to see why in any case, except that of single tracts lying in adjoining counties, the court of the domicile or mansion-house should be preferred.

In cases of insolvent estates, and where it may be necessary to sell or mortgage to pay debts, there is great propriety in such preference, because the lands are assets for the payment of debts, and, as such, under the control of the court of the county where decedent resided at the time of his death. In cases of solvent estates the land vests in the heirs or devisees who can convey without the intervention of the court. Where they can not agree, power is vested in the courts to decree partition and sale. But why, in such cases, should one court be preferred to another except in case of single tracts lying in adjoining counties, where some particular court must be selected? Assume a case of a decedent whose domicile was in Philadelphia and owning there a mansion worth a few thousand dollars, and with valuable coal mines in Schuylkill, and a valuable farm in Lancaster. When it is desired to have partition of the mines, or the farm, or all the land, why should Philadelphia, with perhaps no heirs living there, be preferred as the place in which to institute the proceeding? As the selection of the forum is only an arbitrary act,

Essick vs. Buckwalter.

we may well conclude that in this course of legislation it was intended to confer jurisdiction upon either court, except in the one case of adjoining tracts.

By the act of 1854 provision is made for filing exemplifications of the record in each county, so that there can be no confusion or difficulty in the matter. Conflicting proceedings commenced in different counties would be easily adjusted by the courts when such fact was brought to their attention, and no court would assume jurisdiction when proceedings had already been commenced in another county. It may also be said that, in general, the court of the county where the land is situate is better able to judge of the propriety of partition, etc., with reference to values, the inquest to be appointed, the regulation and time of sales, etc., than a distant county.

It would also seem rather a singular proceeding that the court of a county wherein lands are situate, before allowing heirs to have partition of their own property, should first obtain permission to act in the matter from another court, having no knowledge of or interest in the matter.

We have come to this conclusion with reluctance, because of the contrary decision of the Orphans' Court of Philadelphia; but as, in our view of the matter, the petitioners have a right to maintain their present proceeding, a decree will be made accordingly.

Supreme Court of Pennsylvania.

WILLIAM S. ESSICK VS. CHARLES BUCKWALTER.

B., the half owner of an interest in a business, made E. his attorney in fact "to sell, settle and adjust all my partnership interests in said firm, and in all matters and in all respects act for me in said partnership matters as by him shall be deemed best," etc. É. sold the interest and took a note for the purchase money of both partners given by another. E. endorsed the note personally to bank. B. brought suit to recover his money. Held, that the power of attorney gave no right to endorse a note for the larger amount, so as to hold the principal, and that the principal could recover from the agent the full amount due him on the transaction.

ERROR to the Court of Common Pleas of Montgomery county.

In 1886 Buckwalter and another were in the saloon business. On March 25, 1886, Buckwalter gave Essick a power of attorney