Appeal of Hall

Mr. Justice Clark

delivered the opinion of the court April 19th, 1886.

This bill was filed by Hiram Hall et al., in behalf of the Kennett Square Preparative Meeting of Friends, against Solomon and Sharpless Mercer, executors of the last will and testament of Samuel Martin, deceased, to establish an alleged right under the said will, and to compel the performance, by said executors, of certain duties incident to that right. Samuel Martin, for fifty years and upwards, prior to his decease, had been a member of the Preparative Meeting at Kennett Square'; he died on the 17th June, 1880, at an advanced age, possessed of an estate estimated to exceed $70,000, and leaving to survive him collateral kindred only. In a codicil to his will, dated 8th March, 1880, he provided as follows: — “ I, Samuel Martin, of Kennett Square borough, have for a considerable time desired, and it is my wish, that my executors named in my last will and testament shall, at a proper time within one year after my death, enclose, with a good and substantial iron fence (somewhat like the one around the cemetery at Unionville), the Friends’ meeting-house grounds, as also the school-house grounds attached, and the Friends’ burial ground, all expenses incurred to be paid from the proceeds of my estate.”

After the decease of the testator his will was probated, and letters testamentary thereon were issued to the defendants. He began the work of erecting this fence himself; fearing,perhaps, that he might not be able in his lifetime to finish it, he added the codicil to his will which had been previously executed, in order that, in the event of his death, it might be afterwards completed. The meeting-house and burial grounds referred to were, as the Master has found, at the time under the control and beneficial ownership of the Kennett Square Preparative Meeting of Friends, whilst the school grounds were devised in the testator’s will to the Kennett Monthly Meeting. Both of these religious bodies are unincorporated; the Monthly Meeting is an ecclesiastical organization, of superior authority, embracing within its jurisdiction and bounds the Kennett Square, the Kennett, and the Marlborough Preparative Meetings, and convenes alternately at the meeting houses of the subordinate bodies named. The three lots adjoin, each the others; the meeting-house and the school ground fronting on what is known as State Street, in Kennett Square, and the burial ground lying in the rear of the others.

The amount expended by Martin in his lifetime, on the fence, was $444.60 ; this sum, after Martin’s death, was paid by the executors, and for that expenditure they have credit in their account. A contest or controversy soon commenced as to the erection of this fence; indeed, the codicil, for some reason not shown, was not probated until a citation to that end had been served. The residuary legatees seem to have favored an economic administration of this provision of the will, and questions were raised (1) as to the bill for fencing already done, (2) as to whether the fence should enclose each of the three lots separately, or the whole three as one merely, and (3) as to the amount of money necessary to be expended in the work.

On the 7th Juty, 1881, the executors filed their first account; claiming credit for $444.60, the amount disbursed by them in payment of the debt incurred for the fence by the testator in his lifetime, and for $1,600, which they claimed to retain or reserve to complete the work, and exhibiting a balance in their hands for distribution to the residuary legatees of $31,306.29. To both of these items of credit, exceptions were filed by the residuary legatees, and an Auditor was appointed to pass upon these matters of dispute. The Auditor allowed the item of $444.60, reduced the $1,600 item to $1,350, and in this form the account was subsequently confirmed. On 29th June, 1882, a supplemental account was filed, showing a balance of $348.60 in the hands of the executors, which was confirmed without objection.

The duty of the executors, under the codicil to this will, was to enclose “the Friends’ meeting-house grounds,” as also “ the school-house grounds attached,” and the “ Friends’ burial ground.” The three different lots are severally designated, and the duty imposed clearly attached to each of them separately, the character and quality of the fence was not only particularly specified, but the testator in his lifetime, by the partial erection of the work, indicated the kind of a fence he intended. The several and respective lots were to be enclosed —that is to say, shut in on all sides. A field with a fence on three sides only could not, in any proper sense, be spoken of as inclosed, unless the fourth side was bounded by some natural object, or occupied by some artificial erection, which rendered a fence impracticable or unnecessary. In this case it is conceded that the sheds do not extend to the eastern boundary of the meeting-house lot — indeed, the sheds do not appear to have been located with reference either to the line of the lot or of the alleged right of way. The reservation for the right of way is of twenty feet along the Taylor line, whilst the sheds are twenty-seven feet distant from that line at the north, and forty-two and a half feet at the south end; a considerable part of the lot therefore lies west of the sheds. Whether this “privilege of a road twenty feet wide,” reserved nearly three quarters of a century ago, and never yet exercised, will hereafter be asserted, is a matter to be determined in the future; but if it should, the exercise of it is in no way inconsistent with the enclosure of the grounds; a proper arrangement for the enjoyment of the privilege may be provided when the privilege is to be exercised. Bringing the words of the will and codicil into contact with all the surrounding facts and circumstances, no doubt can reasonably arise as to their correct application to the subject matter; no latent ambiguity can, therefore, be said to exist. The very learned and elaborate report of the Master contains a reference to a large number of cases, the authority of which is undoubted, but they have no application whatever to this case. The testator’s provision for the erection of this fence is plain, and the duty which it imposed upon the executors clear and obvious. If that duty had been discharged, as directed, the embarrassment which the3>- now suffer would have been wholly avoided.

It is contended, however, that the complainants are concluded by the decree of the Orphans’ Court confirming the report of the Auditor appointed to pass upon the exceptions to the executors’ account. We do not think so. . The executors as the accountants, and the residuary legatees as the ex-ceptants, were the only parties to that contention. No ques^ tion affecting the complainants’ rights, or of distribution, was raised; the complainants had no concern whatever in the result. If the executors had discharged their duty, as they were plainly directed, the costs of the erection of' the fence would then have been accurately ascertained, by the amount of the actual expenditure. If the executors chose to estimate the amount required, .and accept a credit for a sum retained for the purpose, that was a matter of no moment to the complainants, who, if the grounds were fenced, were indifferent as to the cost. But we do not regard the action of the Auditor in this respect as conclusive upon any one. The item $1,350 was but an estimate, and that sum was simply allowed to be retained for this special purpose. If the fence had been erected at a cost of $1,000, can it be doubted that the remaining $350 would have belonged to the estate? And if the $1,350 proved to be inadequate, could not the accountants apply from the funds of the estate such additional amount as would complete the work according to the plan of the testator ?

The Orphans’ Court never assumed jurisdiction of the precise subject matter of this suit. The complainants have never been parties to any proceeding there; if they had appeared at the hearing of the exceptions, they could not have raised the question there which we are now considering here. In the confirmation of the executor’s account, a sum of money was set apart, and retained by the executors, for the performance of a specific provision of the codicil to the will; but the precise import and meaning of that provision is now disputed, and the responsibility of the executors as to a specific portion of the work is denied.. If the sum thus set apart had been for the payment of legacies, would a legatee, whose right to participate was subsequently denied, be thereby precluded from proceeding in the Common Pleas for the establishment of his right? Or, if the sum thus set apart and retained had been for the payment of a single specific legacy, part of which, by reason of an alleged advancement, was in dispute, would the legatee be deprived of his remedy in the Common Pleas, by the decree of the Orphans’ Court, in a proceeding to which, in the very nature of the case, he could not be a party, and in which his claim could not be adjudicated? The mere statement of such a proposition is a sufficient argument to show that it is altogether unsound.

As to the power of the Common Pleas, in equity, to take cognizance of this case, there can be no doubt. This bill is brought to establish a right of the Kennett Square Preparative Meeting of Friends, under-the codicil of Samuel Martin’s will; that right, as to the fence along the western boundary, has been positively denied, and this is a suit in which the claim of the complainants is to be adjudicated. There is no averment of a deficiency of assets, and the whole question is one of the complainants’ right to recover. The jurisdiction of the Common Pleas, in this form, to establish a right under a will is fully considered in the Fidelity Insurance Co.’s Appeal, 3 Outerbridge, 443. In that case a bill was filed by the members of a church organization against the executors of Charles Macalester, deceased, to enforce their rights under the will in reference to the erection of a church which the testator, in his will, had directed to be built out of the funds of his estate, and it was held that the jurisdiction of the Orphans’ Court was not exclusive, but that the Common Pleas had jurisdiction in the premises. Our brother Tkijnicey, delivering the opinion of this court, says: “ The Orphans’ Court is a special tribunal for Specific cases; it is not vested with the general powers of a court of equity. It has exclusive jurisdiction to ascertain the amount o'f the estates of decedents and order their distribution among those entitled, whether creditors, legatees or distributees. Rut the remedy of the creditor to establish his debt in a common law court is not taken away: Hammett’s Appeal, 83 Pa. St., 392. And in some circumstances he may have execution upon his judgment. Legatees are authorized by the Act of February 24th, 1834, to proceed by action in a common law court to recover a bequest of money or other goods or chattels when the executor has assets, without interference with the exclusive jurisdiction of the Orphans’ Court in the settlement and distribution of the estates of decedents: Burt v. Herron’s Ex’rs, 66 Pa. St., 400. The collection of judgments in favor of creditors or legatees may be stayed for a proper time to await settlements or other proceeding in the Orphans’ Court. After a legatee has obtained judgment the executor may aver the want of assets, and thereupon execution shall be stayed until an account shall be taken in the proper tribunal, and the amount, if any, payable on such legacy, be ascertained.” When the right has been established, the decree must accord with the provisions of the codicil to the will, and its enforcement must of course in all respects be governed by principles similar to those which are applicable in the recovery of legacies in common law courts.

The decree of the Common Pleas is therefore reversed, and it is now ordered, adjudged and decreed that the plaintiffs are in equity entitled, as set forth in the bill; and it is further-ordered that Solomon Mercer and Sharpless Mercer, executors of the last will and testament of Samuel Martin, deceased, the defendants, do forthwith proceed, according to the provisions of the codicil to the last will and testament aforesaid, to erect a good and substantial iron fence along the western boundary of the grounds of the Kenuett Square Preparative Meeting of Friends, in Kenuett Square, Chester county, and to extend the fences, already erected, along the northern and southern lines of the said grounds respectively, to connect therewith; that the said grounds may be inclosed; the said fence to be, in all respects, similar to the fences already erected, as aforesaid ; and it is ordered that the defendants pay the costs.