Appeal of Miskimins

Mr. Justice Trunkey

delivered the opinion of the court

William Miskimins died April 27th, 1879, and letters of administration of his estate were granted to Charles A. Warm-castle on the 9th of June following. At the time of his death the decedent owned real and personal estate, was indebted to divers persons, and two of his debts were secured bjr mortgages ; his estate was more than sufficient for the payment of his debts and expenses of administration. The administrator sold the personalty, and by order of the Orphans’ Court sold one of the tracts of land, from both sales securing $9,119.25. He paid the debts secured by the mortgages and purposely had them satisfied on the record. He paid other debts so that the sum of all payments nearly equalled the sum of the trust money that had come into his hands; leaving about $2,000 of indebtedness unpaid, to which would be added the expenses of settling the estate. The tract of land remaining unsold contained two hundred and sixty acres and was worth $12,000. On June 23d, 1883, the administrator obtained from the Orphans’ Court an order for the sale of this land, returnable July 28th, 1883; but he did not sell, and has made no return of the order. By inadvertence he suffered five years to elapse from tlie date of the decedent’s death, without executing said order of sale; nor has he applied for a continuation of the order, or for a second order of sale. He has filed no account; but he filed this bill nearly six years after the death of William Miskimins.

The Orphans’ Court has exclusive jurisdiction of the settlement of the accounts of an administrator, including the fixing of the amount of compensation for his services; also of the distribution of assets; and also for the sale of real estate of a decedent for the purpose of paying debts. Even an execution on a judgment-shall be stayed, if any interested person shows to the court issuing such execution that the personal assets are insufficient to pay all just demands upon the estate; and if the administrator do not voluntarily make application for an order for sale, he may be compelled to do so by thp mandate of the Orphans’ Court. It is often, though not properly, named a court of equity; and upon the principles in equity, may dispose of every question that arises in the determination of matters within its jurisdiction. It has power to prevent, by order in the nature of writs of injunction, acts contrary to law or equity, prejudicial to property over which it has jurisdiction.

The plaintiff in this action is trustee of all the property of the estate that comes into his hands by virtue of his office, and the Orphans’ Court alone has jurisdiction of such property, and of his management and conduct in the settlement. He invoked its authority for sale of the real estate. We do not assent to the view of the Master and court below that “no duty rested upon him to apply to the Orphans’ Court for an order to sell real estate for the payment of debts ”; on the contrary, under the circumstances, he was strictly in the line of his duty when he did apply for such order. The larger tract remains unsold by his own neglect — he may have had profound deference for the wishes of the widow and heirs, but no trick or fraud practiced by them induced his delay. By his own showing there is lawful cause for sale or mortgage of real estate for payment of some liabilities, even if the-lien of certain debts is lost. Why should he go into another court ■for a decree of subrogation to the rights of a creditor to a debt which he paid and satisfied? The Orphans’ Court can dispose of that question in the disposition of questions then pending ■before he filed this bill. No other court can determine whether anything is due him for which he ought to have the security of the mortgages.

In many cases the Court of Common Pleas and the Orphans’ Court have concurrent jurisdiction, and the plaintiff contends it is so respecting the matter of this bill, if it be conceded that the Orphans’ Court has power to determine it: Campbell’s Appeal, 80 Pa. St., 298. In that case the plaintiff was the widow, the executors and legatees defendants, and she prayed a decree that post-nuptial settlements made with her husband were yoid for fraud, and decree was made accordingly. She had no settlement to make in the Orphans’ Court, and had begun no proceeding there. “ The decree itself shows that no matter of settlement or touching the administration of the estate was drawn within the power of the Common Pleas. No power of the Orphans’ Court was trenched upon.” Then, a person interested in the estate, occupying no trust relation, in the first instance, moved a court of concurrent jurisdiction to declare void a fraudulent instrument made in the decedent’s lifetime, which, if not removed out of the way, would have been an obstruction constantly occurring in the Orphans’ Court to hinder or delay distribution. But here is a trustee under the exclusive control of the Orphans’ Court, where proceedings are pending founded on his petition setting forth the same debts and expenses as are set forth in the bill, stepping into another court to get a decree putting a new face on a portion of his own conduct of the trust.

We are not unmindful of the contention, supported by specious argument, that this is a creditor’s bill, and that creditors, using the name of the trustee, are now seeking to avoid the misuse of trust funds. As if authority for this, are cited Harrisburg Bank v. Tyler, 3 W. & S., 387; Thompson’s Appeal, 22 Pa. St., 16; Kirkpatrick v. McDowell, 11 Id., 393; Abbott’s Ex’s v. Reeves, 49 Id., 494. These cases illustrate the application of familiar principles, as where a trust fund has been wrongfully converted into another species of property, if its identity can be traced, it will be held in its new form, liable to the rights of the cestui que trust, unless there be a superior equity in a bona fide purchaser without notice; and securities belonging to a trust estate, loaned by a trustee to another, may be recovered. But no case is referred to showing that where an executor or administrator paid a debt owing by the decedent, that either he, or other creditors, could recover back the whole or a part of the money. And we are advised of no principle in morals or equity, in case of the voluntary payment of a debt by the administrator of a solvent estate, that would require the creditor to refund the money.

This bill appears to be purely in the interest of the administrator for his own relief in a matter immediately connected with the performance of his trust duties. In our opinion the jurisdiction of the Orphans’ Court is exclusive. In most-cases where the Orphans’ Court has jurisdiction of subrogation, it may be conceded that there is concurrent jurisdiction in the Court of Common Pleas. Nor do we say. that cases may not arise where an administrator will be entitled to equitable relief in the latter court. Under the facts presented, it is clear that if the plaintiff is entitled to relief it can be properly measured and applied by the only competent tribunal for determining every question touching the administration.

But were it doubtful whether the Court of Common Pleas could entertain the bill, the doubt should be resolved against the plaintiff. No good can come by permitting an executor or administrator, in a matter springing from his conduct of the trust duties, and which concerns only himself and those entitled to share in the estate, when proceedings are pending in the Orphans’ Court, to seek relief in a court which has no control over the trust, and no jurisdiction of his accounts.

We do not intend to indicate any opinion upon the merits of the plaintiff’s claim.

Decree reversed, and bill dismissed at the costs of the appellee, Charles A. Warmcastle, including costs of appeal. Record remitted.