Gotwald v. Small

88 A. 1015, 242 Pa. 239, 1913 Pa. LEXIS 871

• Court: Supreme Court of Pennsylvania
• Decided: July 10, 1913
• Docket: Appeal, No. 180
• Status: Published

Opinion

Opinion by

Mr. Justice Potter,

In this appeal from a judgment entered in a case stated, it appears that the question raised in the court below related to the proper distribution of the residue of a decedent’s estate. It would seem, therefore, that the exclusive jurisdiction to determine the question here involved was in the Orphans’ Court. A common law action cannot be sustained against an executor or an administrator to recover a distributive share of the estate of a decedent: Whiteside v. Whiteside, 20 Pa. 473; Ashford v. Ewing, 25 Pa. 213; Black v. Black, 34 Pa. 354. In principle, however, the opinion which has just been filed in Small, et al., v. Small, 242 Pa. 235, is decisive of the question here raised. We there held that the word “share,” as used by this testator in the fifth clause of the first codicil to his will, was intended to include the entire interest of his daughter Julia in his estate. Under that clause the principal of her share is to be held in trust by the executors, the income only to be paid to her as it accrues, during her life.

The judgment is reversed.