complainant, and Rachel Riehl, wife of Thomas | time since said date, and was then rented for a Riehl, surviving executrix of the last will and sum largely in excess of said rent. testament of Joseph Brotzman, late deceased, and said Thomas Riehl, Hannah Brotzman, widow, and Ulrich Vanselus Brotzman, Ephraim Brotzman and Percy Clayton Brotzman, sons, and Anna Rebecca Brotzman, daughter of John Philip Brotzman, late deceased, who was a son of Joseph Brotzman, and The Glendon Iron Company, assignee of Charles Jackson, Jr., lessee, defendants. The bill alleged that the complainant was a daughter and one of the heirs-at-law of Joseph Brotzman, who died testate on September 17, 1852. That by his will the testator had provided, inter alia, as follows: I give and bequeath unto my beloved wife Elizabeth, during her widowhood, in lieu of her dower or thirds out of my estate, the frame house (being the homestead), and garden attached thereto, together with all my household goods and kitchen furniture, with the necessary privilege in the barn, stable, and outhouses, and two cows to be fed, stabled, and pastured, and as much firewood and coal as she may reasonably want, to be delivered wherever she may direct on the premises, together with one-third part of the wheat, rye, corn, potatoes, and hay that shall be raised and made on the premises hereinafter devised unto my three sons, Abraham Brotzman, John Philip Brotzman, and Josiah Brotzman. The grain to be divided in the bushel and to be taken and carried to the mill and to be ground or sold as she shall or may from time to time order and direct, and the flour and bran made therefrom, or so much thereof as she shall or may from time to time require, be brought and delivered to her upstairs in the house free from any cost or charge whatever, under and subject however that my daughter, Catharine Brotzman, shall, as long as she shall remain single and unmarried, have the free and undisturbed use, liberty, and privilege of the room upstairs that she has now in her possession, together with the necessary privilege in the kitchen, cellar, yard, garden, and outhouses, and free egress, regress, and ingress to and from said room, and to be furnished by my beloved wife during said term with as much provision as she may reasonably want without any cost or charge whatever. It is further my will and I hereby order and direct that in case that the said devise should, in the opinion of my son Abraham and my daughter Rachel, and the survivor, be insufficient for the comfortable support and maintenance of my said wife and daughter Catherine during said term, then I order and direct that the sum of one hundred dollars shall be paid annually during said term to my said wife and daughter and the survivor out of the proceeds of the rent for the ore-bed. That the present occupier of said homestead premises was Ephraim Brotzman, and that Rachel Riehl, executrix, survived Abraham Brotzman, executor of said will. That the present lessee of the ore-bed was the Glendon Iron Company, assignee of Charles Jackson, Jr.; and the premises containing said ore-beds were now in possession of Hannah Brotzman, widow, and Ulrich Vanselus, Ephraim, Percy Clayton, sons, and Anna Rebecca, daughter of John Philip Brotzman, now deceased, one of the sons of Joseph Brotzman, testator. That the complainant was dependent upon the provisions of said will and had made frequent requests and demands of defendants to have and enjoy the rights, liberties, and privileges given to her under said will and hereinbefore stated, as well as to have and receive payment of said sum of one hundred dollars directed annually to be made, to all of which said defendants had hitherto refused and still did refuse to comply. The bill prayed: (1) That complainant be accorded and reinstated in the rights, liberties, and privileges provided for her and directed in said will; (2) that defendants be ordered to pay over to complainant said annual payments of one hundred dollars, as directed in said will, with all arrearages of interest due thereon; and (3) other and further relief. The defendants demurred to the bill, alleging want of jurisdiction, an adequate remedy at law, and no relief in equity. This demurrer was overruled, and defendants required to answer. The answer of Rachel Riehl admitted the facts of the bill, disclaimed any defence, and that the prayers of the bill were just and equitable and should be granted. The answer of the other defendants denied that the complainant had been deprived of these privileges, and averred that but one payment of $100 had been made in 1862 or 1863, since which time it has never been demanded, except just prior to filing this bill. The case was referred to William C. Shipman, Esq., as Master, who found the facts to have been as alleged in the bill. Upon the question of jurisdiction the Master reported as follows: "It is further contended that this legacy canThat the complainant had remained single and not be recovered by means of a bill in equity, but unmarried, and that her mother, the widow of that resort must be had to the common law actestator, died August 18, 1875, since which time tions; and that it does not appear by averments the complainant had been deprived of the neces- in the bill that it is the opinion of the testator's sary privileges in the kitchen, cellar, yard, gar-daughter Rachel that the devise to Catherine preden, and outhouses, and the provision that she viously given is sufficient for her support and reasonably wants-as well as of the annual pay- maintenance. The latter criticism is amendable ment of one hundred dollars out of the proceeds now. It perhaps should be made, but the omisof the rent for the ore-bed, although said ore-bed sion of the averment is not fatal. (City v. Schuylhad been continuously rented during the whole kill R. R. Co., 15 WEEKLY NOTES, 364; Com., ex. rel. Bass v. Cait et al., Id. 270; Com., ex. rel. Sellers v. Reeves et al., 1d. 45.) "In these cases, of course, there was no express agreement constituting the trust, but the law implied the trust in order to prevent the in liability to pay or legal right to demand the claim. An administrator and such an executor are utter strangers to the land and payment to them would be none at all unless the implication arose that the payment was made for the benefit of the heirs or the devisees. "As to the form of action there is more difficulty. The bequest is to paid out of the pro-justice of a mis-payment where there was no legal ceeds of the rent for the ore-bed.' It does not appear by whom it is to be paid, whether by the lessee of the ore-bed or by the devisees. Defendants' counsel contend that the executors must recover it and pay it over. This is asserted only as to the then existing lease which has expired. The ore-bed has been worked continuously since, and has been leased. It does not seem important, in the view we take of this question, whether the annuity is payable by the lessee or the devisees. The legacy is demonstrative, that is, to be paid out of a particular fund. The legatee's claim is for the stated amount of that fund. If, on the other hand, this amount of the rent is payable by the lessee to the legatee, then the acceptance and receipt thereof by the devisees would make them trustees for the legatee, and they would be obliged to refund it to her. "In Story's Equity Jurisprudence, § 1196, it is said: "The most simple form, perhaps, in which such an implied trust can be presented is that of money or other property delivered by one person to another to be by the latter paid or delivered over to and for the benefit of a third person. In such a case (as we have seen), the party so receiving the money, or other property, holds it upon a trust; a trust necessarily implied from the nature of the transaction, in favor of such beneficiary, although no express agreement has been entered into to that effect.' "In 1041 it is said that it is laid down in a work of very high authority: "If a man gives goods or chattels to another upon trust, to deliver them to a stranger, chancery will oblige him to do it." "In Kent's Com., 4 vol., p. 307, the author says: If a trust be created for the benefit of a third person without his knowledge, he may, when he has notice of it, affirm the trust and call upon the Court to enforce the performance of it.' "The case in hand is similar to the above cases if this rent was payable direct to the legatees entitled to the annuity, and if any of the defendants received it, the necessary implication is that they received it in trust to pay it over to the proper devisee, the annuitant. "Now, on the other hand, if the intention in this will is that the devisees are to receive the entire undivided rent of the ore-bed, and to pay thereof one hundred dollars to the annuitants and the survivor, then it seems to me that we have here a typical form of a testamentary trust. It is not the case of a bequest on condition of the legatee paying over a certain sum to another legatee, which, upon acceptance, creates a personal liability to pay the sum; but is the bequest of a sum to be paid out of a particular fund. If the devisees of the realty are to be the custodians of this fund, and are authorized to receive and pay over the determinate and fixed portion of the rent as an annuity, then they are vested with property for the benefit of another and are trustees under this will, and this bequest is a testamentary trust. "The Master is inclined to the latter alternative rather than the former, and is of opinion that this is a testamentary trust. "In the view which has been expressed above as to the character of this legacy, it is supposed that it is not controverted that the Common Pleas, sitting as a Court of Equity, has jurisdiction. Defendants' counsel admit in their brief that Courts of Equity in this State have the care of trust moneys, under the various Acts of As"These general principles are of frequent appli-sembly conferring equity powers upon the Courts. cation. At the present moment it occurs to the It would be easy to mass the authorities in supMaster that the nearest approach to the present | port of this position, that the two kinds of trusts application of the principle will be found in that mentioned above are within the control of the line of cases beginning with McCoy v. Scott (2| Equity Courts. Rawle, 222), where it was held that an administrator who collects the rents and profits of the real estate of the intestate holds them as trustee for the heirs. (Vide also Robb's Appeal, 5 Wr. 45.) “And an executor has no authority to collect rents of the real estate accruing after the death of the testator unless empowered to do so by the will; but if he collect them he is liable to account to the heirs or devisees as their agent or trustee. (Landis v. Scott, 8 Casey, 495.) "In Story's Equity Jurisprudence, § 1041, it is said that where money or other property is delivered by a bailor to B. for the use of C., or to be delivered to C., the acceptance of the bailment amounts to an express promise from the bailee to the bailor to deliver or pay over the property accordingly.' "But as some doubt may be entertained whether an action at law could be maintained against the bailee by the person for whose use the money or property is so delivered, the author says: It is certain that a remedy would lie in science.' (1 Pomeroy's Eq. Jur. § 404.) She equity under the like circumstances as a matter of must also remember that although equity foltrust.' lows the law, a Court of Equity will in no "In Landis v. Scott (8 Casey, 495), which case allow itself to be made the instrument of was a bill in equity for the recovery of rent re-injustice.' (Kerr on Inj. 6.) ceived without authority, the Court held that an implied trust arose to pay the rent over to the owner and the form of the action passed unchallenged. "These authorities are certainly sufficient upon the jurisdiction over implied trusts. "As to testamentary trusts, it was said by HARE, P. J., in Anderson v. Henzey (7 WEEKLY NOTES, 39), it is established under the authorities that the jurisdiction of the Court of Common Pleas and Orphans' Court is concurrent, unless they are conferred on the executor as such or virtute officii. (Brown's Appeal, 2 Jones, 337.') (Vide Seibert's Appeal, 19 Pa. St. 49.) "The conclusion of the Master is that the Court of Common Pleas, sitting in equity, has jurisdiction of the matter of the annuity." The Master then reported that the first prayer should be dismissed as vague and indefinite, and further because complainant's remedy therefor was an action for damages. He further reported that the second prayer should be granted, and submitted a decree to that effect. Numerous exceptions were filed to this report. After argument, the Court in an opinion by SCHUYLER, P. J., entered a decree dismissing the bill. The material part of said opinion was as follows: "Very little reflection will show that the decree recommended by the Master is a hard decree-so hard that we should hesitate to adopt it for that reason alone. Had a demand in legal form been made on the defendants in 1876 it is fair to presume that they could have easily paid the $100, as the will directs, that is, annually,' whilst if we adopt the decree recommended by the Master it might result in sweeping away their entire inheritance, and this through no fault of theirs. In the face of such a result it is idle to talk about the plaintiff's legal rights, if she has any, as we think she has not. But concede, for the sake of the argument, that the plaintiff was under no legal duty to make a prior demand. It is enough for our present purpose that she was under a moral duty so to do, and not having done so, we think she has no standing in Court. "In its purely legal aspect the present case presents two questions of considerable difficulty. The first has already been hinted at, whether even at law a prior demand is not necessary. The second is, whether from a fair interpretation of the whole will it was not the intention of the testator that the $100 bequest should cease at the death of the widow. In the view taken above it becomes unnecessary to decide these questions. I will say, however, that as to both of them the inclination of my mind is in favor of the theory of the defendants. I also agree with the learned counsel for the defendants that the $100 bequest is made a charge on lands; but I cannot agree with him that this Court, sitting as a Court of Equity, has no jurisdiction to enforce payment of such legacies. The original jurisdiction of Courts of Equity over legacies charged on land is undoubted. Indeed, until the rule was changed by legislation, the jurisdiction was exclusive. (Story's Eq. Jur. § 602.) By our own Act 24 February, 1834, § 59 (P. L. 84, Purd. 556), similar jurisdiction is conferred on the Orphans' Courts, and a mode is provided for enforcing payment of such legacies. By operation of Act 21 March, 1806, § 13 (P. L. 569, Purd. 74), this mode must be pursued to the exclusion of all common law remedies. The latter Act, however, has no application to equitable remedies, and an examination of the cases relied on to prove that the jurisdiction of the Orphans' Court to enforce legacies charged upon land is exclusive, will show that they are all cases where an attempt has been made to enforce payment of such legacies by a common law action. Every lawyer knows how tenacious Courts of Equity are of a jurisdiction that has once attached. Nothing short of a positive Act of Assembly can take away such jurisdiction, and there is no such Act in reference to legacies charged upon land." Thereupon the complainant took this appeal, assigning for error the decree of the Court. William H. Armstrong, for appellant. B. F. Fackenthall (with whom was William Fackenthall), for appellees. "Plaintiff must remember that she is in a April 16, 1888. THE COURT. Under the Court of Equity seeking equitable relief, and will of Joseph Brotzman, the provisions in favor that whoever comes into a Court of Equity of his daughter, Catherine Brotzman, are charged must come with clean hands. It is not alone upon his real estate. Similar charges have been fraud or illegality which will prevent a suitor so held (Gibson's Appeal, 25 Penn. 191; Bufrom entering a Court of Equity; any really un-chanan v. Duncan, 40 Id. 82; Steele's Appeal, conscientious conduct connected with the contro- 47 Id. 437). versy to which he is a party will repel him from By the 59th section of the Act of 24th Febthe forum whose very foundation is good con-ruary, 1834 (P. L. 84), it is provided that "when a legacy is or hereafter may be charged effect-the Act of 1806 (Spangler's Appeal, 64 upon or payable out of real estate, it shall be Pa. 387). Other illustrations might be given, lawful for the legatee to apply, by bill or petition, and other authorities might be cited, were it to the Orphans' Court having jurisdiction of the necessary to show that under the Act of 1806 a account of the executor of the will by which remedy given by an Act of Assembly must be such legacy was bequeathed, whereupon such strictly pursued." Court, having caused due notice to be given to such executor, and to the devisee or heir, as the case may be, of the real estate charged with such legacy, and to such other persons interested in the estate, as justice may require, may proceed, according to equity, to make such decree or order touching the payment of the legacy out of such real estate as may be requisite and just." In Pierce v. Livingston (80 Penna. 99), it was said by SHARSWOOD, J., in commenting upon this section: "It is very well settled that the jurisdiction of the Orphans' Court under this section of the Act is exclusive." This was the very point decided in the case, and the opinion is fortified by the citation of numerous authorities which fully sustain it. The 59th section of the Act of 1834 gives a complete remedy in the Orphans' Court, and was evidently intended to exclude every other remedy and jurisdiction. That this is so as to common law remedies is admitted. Such result necessarily follows from the Act of March 21, 1806 (4 Sm. L. 322), which provides that "in all cases where a remedy is provided, or duty enjoined, or anything directed to be done by any Act or Acts of Assembly of this Commonwealth, the directions of said Act shall be strictly pursued, and no penalty shall be inflicted, or anything done agreeably to the provisions of the common law in such cases, further than shall be necessary for carrying such Act or Acts into effect." The learned Judge below, however, held that this did not interfere with the jurisdiction of equity, and that a bill may still be filed in the Common Pleas to enforce the payment of a legacy charged upon land. This is a narrow view of the Act of 1806. By what possible use is a bill in equity where an Act of Assembly has given a convenient and adequate remedy? The very corner-stone of equity jurisdiction is that a wrong exists for which no adequate remedy has been provided, and which the law fails to correct by reason of its universality. Our books are full of cases in which it has been held that where a remedy has been provided by Act of Assembly, equity has no jurisdiction. Thus it has been held that a bill in equity will not lie against an incorporated company where the Act incorporating such company gives a remedy by a proceeding for the assessment of damages, and that such remedy must be pursued (Stump's Appeal, 38th Legal Intelligencer, 205). We have innumerable decisions to the effect that in all such cases the remedy must be pursued. So, indeed, we have an Act of Assembly to that Prior to the Act of 1834 the remedy universally adopted in this State to recover a legacy charged upon real estate was a common law action. The books are full of such cases, and the practice continued long after the Act of 1834 was passed. As was remarked by Justice COULTER in Stricker v. Sheaffer (5 Pa. 240): "Such is the tenacity, however, of customs and forms, in their hold upon the mind, that the old practice still lingered and lingers in some parts of the State." These cases were invariably reversed when they reached this Court. Some little of this tenacity for old forms and customs must still exist, if we may judge from the frequency with which uncertain remedies are resorted to where a certain, convenient, and adequate one is given by an Act of Assembly. The filing of this bill, however, cannot be said to be a result of clinging to old forms, as I have no knowledge of such a bill having been filed in this State before; certainly none such has been called to our attention. The learned Master below, in his labored argument to sustain the jurisdiction of the equity side of the Common Pleas, cites no such case. He places his opinion mainly upon the ground that this is a testamentary trust. The will undoubtedly creates a charge upon the land. A ground-rent and a mortgage are respectively a charge upon real estate. Whether the will of the testator creates a testamentary trust is a subject foreign to this inquiry. The jurisdiction of the Common Pleas cannot be sustained upon this ground. Pierce v. Livingston and numerous other cases have decided as plainly as language can make it, that under the Act of 1834 the jurisdiction of the Orphans' Court is exclusive in the case of a legacy charged upon real estate. And we are of opinion that it excludes the equity as well as the common law jurisdiction of the Common Pleas. Upon the merits we are all with the learned Auditor, and are of opinion the plaintiff is entitled to the sum awarded her, but as she is in the wrong Court, we cannot help her in this proceeding. The Court reversed the Auditor, and dismissed the bill. We are constrained in view of what has been said to affirm the decree, but it is without prejudice to her right to proceed under the Act of 1834 in the Orphans' Court. The decree is affirmed, and the appeal dismissed at the costs of the appellant. Opinion by PAXSON, J. TRUNKEY, J., absent. C. K. Z. Jan. '87, 353. Schaeffer's Appeal. March 2, 1888. | credits to the register and others in the fourth Decedent's estates-Executors and administrators of creditors in. deceased. This distribution was made under the Act of February 24, 1834, § 39 (P. L. 81), and the Court ordered that the distributees should give refunding bonds according to law. Before the said distributees received their respective sums, they each gave a proper refunding bond, duly approved by the Court, and filed in the Orphans' Court. On October 10, 1885, on application of Adam Rhoads and William L. Rhoads, claiming to be creditors of the estate of Simon P. Guldin, the said fourth account of administratrix was called An account of an administratrix having been filed in the Orphans' Court, a decree was entered January 20, 1883, directing distribution of the balance in the hands of the accountant to the next of kin of the decedent, and directing the distributees named to give refunding bonds pursuant to the provisions of the Act of February 24, 1834, § 29 (P. L. 80). Refunding bonds were thereupon executed, were approved by the Court, were duly filed, and the money paid out pursuant to the decree. In 1885 application was made by for audit a second time before the separate Orcertain parties claiming to be creditors of the dece-phans' Court of Berks County, established since dent for a review of the former adjudication. The the former adjudication. The Court, SCHWARTZ, Court assumed jurisdiction, set aside the former de- P. J., assumed jurisdiction, and entered a decree eree, and awarded the fund to said creditors: Appeal of Sallie E. Guldin, now Schaeffer, administratrix of Simon P. Guldin, deceased, from a decree of the Orphans' Court of Berks County. awarding the balance in the hands of the administratrix to said creditors, and setting aside the prior decree of HAGENMAN, P. J., as having no validity or binding effect upon the rights of creditors. Whereupon the administratrix took this appeal, assigning for error the decree of the Court. D. E. Schroeder for the appellant. The confirmation absolute of the third and fourth accounts was the final and conclusive de- Rhoads's Appeal, 3 Wright, 189. The decree entered upon the confirmation of these accounts was authorized by law. Act of February 24, 1834, §§ 39, 41, P. L. 81, Purd. 553. Purviance v. Com., 17 S. & R. 30. Patterson v. Nicoll, 6 Watts, 382. The proper remedy of these creditors was by appeal. Downing's Estate, 5 Watts, 90. Weiting v. Nissley, 6 Barr, 14. Act of March 29, 1832, § 59, P. L. 213, Purd. 1286. The estate is solvent, and the creditors therefore cannot suffer any loss. The facts of this case were as follows: Simon P. Guldin died intestate in 1874. His estate was solvent. Shortly after his death, letters of administration were granted to his daughter Sallie E. Guldin, since intermarried with Frank S. Schaeffer. Prior to October, 1881, the administratrix had filed her first and second partial | accounts. On October 10, 1881, she filed her third partial account, showing a balance in hand of $257.80. This account was confirmed nisi on November 26, 1881, and became absolute December 24, 1881. On September 14, 1882, she filed her fourth account, which was also a partial account, showing a balance in hand of $1065.42. This account was confirmed nisi on October 21, 1882, and became absolute Novem- April 16, 1888. THE COURT. The confirmaber 25, 1882. At this time there were some tion of the third account of Sallie E. Schaeffer, debts of decedent's estate still partially unpaid. administratrix of the estate of Simon P. Guldin, The exact amount due thereon could not be ac- deceased, became absolute on the 24th December, curately ascertained. It was supposed that the 1881, and exhibited a balance of $257.80 in the balance in hands of administratrix, as of the accountant's hands; whilst the fourth account third account filed as above, October 10, 1881, became absolute on the 25th November, 1882, was more than sufficient to pay the amount due and exhibited a further balance of $1065.42 in on said debts. On November 27, 1882, the her hands. The confirmation in each case was a Court, HAGENMAN, P. J., decreed the several final decree, and if unappealed from was conclu A. G. Green, for appellees, presented no paperbook. |