Whiteside v. Whiteside , 20 Pa. 473 ( 1853 )

The opinion of the Court was delivered by

Black, C. J.

Cochran Whiteside, of Westmoreland county, died in 1812 unmarried and without issue, but leaving brothers and sisters. Letters of administration were taken out by one Backhouse, who filed an inventory of personal goods amounting to $1026.72, of which $154.13J was cash. In April, 1813, Back-house was discharged, and Samuel Whiteside, of Chester county, a brother of the decedent, was appointed administrator de bonis non. No administration account was ever filed. In 1840 Samuel White-side died, having made a will containing the following clause: “ Whatever money my brother Cochran Whiteside was worth at his death, I allow the same to be equally divided among the heirs.” This is assumpsit brought by the executors of Robert, one of the brothers, against the executor of Samuel, the administrator of Cochran, to recover Robert’s share of “whatever money Cochran was worth at his death.” The Common Pleas decided that assumpsit would not lie.

The Orphans’ Court has become a very important part of our judicial system. The exclusiveness of its jurisdiction and the conclusiveness 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 be 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.

But here is a demand to recover a distributive share of an intestate’s estate by an action at law against the executor of the administrator, without a settlement of any account in the only tribunal which has jurisdiction of the subject or power to ascertain its amount.

If Samuel Whiteside had given a legacy to each of his surviving brothers and sisters out of his own estate equal in value to the property of which his brother Cochran died possessed, no necessity would have existed for an appeal to the Orphans’ Court of Westmoreland. But he says that he allows the heirs of his brother to be paid whatever money he was worth. What he was worth depended as much on the debts and expenses as it did on the value of the property inventoried. The will can mean no more than an injunction upon his executor to settle an account of Cochran’s estate, and divide it among his next of kin according to the rights which they had as heirs or distributees. This provision was simply a recognition of his duty as administrator, an acknowledgment that it was yet unfulfilled, and a direction to-his personal representative to see it performed after his death.

If the will of Samuel Whiteside had been silent on this subject, the great length of time which has elapsed since the letters of administration in Westmoreland might have been a sufficient answer to any citation which could now be issued. It may have been the consciousness of this that caused the testator to use language which would save the rights of the parties interested from defeat.

Judgment affirmed.