Olwine's Appeal

4 Watts & Serg. 492

• Court: Supreme Court of Pennsylvania
• Decided: December 15, 1842
• Status: Published

Opinion

The opinion of the Court was delivered by

Sergeant, J.

— The Act of 22d of March 1825, giving the Supreme Court power to appoint a trustee in consequence of the death of a prior trustee, (extended to the Common Pleas by the Act of 14th of April 1828,) did not authorize the appointment made by the Court of Common Pleas of Chester county of John Shafer as trustee in the present case. By the will, the trust for the widow was annexed to the office of the executors, and on the death of both could only be exercised by an administrator de bonis non.

The proceedings were, therefore, instituted and carried on in the Orphans’ Court without jurisdiction. By the 57th section of the Act of 29th of March 1832, proceedings in the Orphans’ Court to compel any one amenable to its jurisdiction, to appear and submit to its decree, are to be on the petition of one interested. But Shafer, as trustee, had no interest in the estate, or right to demand an account, or to receive the proceeds. It is true, after the account and hearing, a decree was made in favour of Shafer as administrator de bonis non of Rice, and had the proceedings been so instituted and earned on, all would be right. But being defective in their origin and progress, they could not be cured by this. The court could not make any decree in a suit in which they had not jurisdiction;

Decree reversed.