Burkhart's Appeal 1 Monag. 474

Burkhart’s Appeal. [Burkhart’s Estate.]

The orphans’ court has no jurisdiction, under the Act of April 18, 1853, to decree a sale of land of a decedent to pay a mortgage created by the decedent on land situated in another county, where the decedent had his legal residence at the time of his death.

Feb. 20, 1889.

Appeal, No. 289½, Jan. T. 1889, from decree of O. C. Schuylkill Co., dismissing a petition for an order to sell land of a decedent. Stbrrbtt and Mitchell, JJ., absent.

The averments of the petition appear by the opinion of the court, as follows, by Pershing, P. J.:

“ This is a petition by Francisca Burkhart, executrix of Jacob Burkhart, late of the city of Philadelphia, deceased, for a private sale of a lot of ground belonging to said estate, situate in Pottsville. The petition is drawn under the Price Act of April 18th, 1853, and sets forth that Jacob Burkhart, the testator, died at his residerice in the city of Philadelphia, on or about the 8th day.of March, 1887, leaving to survive him a widow, Francisca, the petitioner, and seven children, viz.: Mary, George, and Peter, who are of full age; and Charles, Joseph, John, and Lizzie, who are in their minority, and of whom Charles F. Simonin is the duly appointed guardian. After a bequest to his son Peter, of one hundred dofiars, the decedent devised and bequeathed all the residue of his estate, real, personal and mixed, to his wife Francisca, for and during the term of her natural life, the same to go, at her death, to his children, share and share alike. The personal estate of the testator amounted to One hundred and fifty dollars. His real estate consists of the family residence on Hazzard Street in the city of Philadelphia, which is subject to a mortgage of five hundred dollars, which will become payable on April 21st, 1889, and of a lot of ground on Clinton Street in the borough of Pottsville. This lot, which the petition states is clear of incumbrances, but yields little or no revenue, the executrix has contracted to convey to Francis Alstatt, for the sum of six hundred and fifty dollars, provided an order of sale can be obtained from the orphans’ court of Schuylkill county, so that his title thereto shall be a fee-simple title, freed and discharged from the lien of debts not of record of said Jacob Burkhart, deceased, if any such there be. It is admitted that there are no debts of any kind against the estate of Jacob Burkhart, deceased, other than the mortgage on the real estate in Philadelphia, and this, the petitioner states, she proposes to pay off and discharge out of the proceeds of sale of said real estate in Schuylkill county.

“ Taking the case as stated in the petition, has the orphans’ court of Schuylkill county jurisdiction? The Act of March 29, 1832, § 31, provides, that the orphans’ court which possesses jurisdiction of the accounts of an executor, administrator, or guardian, shall have power to authorize a sale or mortgage of real estate by such executor, administrator, or guardian, inter alia, on the application of the executor or administrator, setting forth that the personal estate of the decedent is insufficient for the payment of debts and maintenance and education of his minor children, or for the purpose *475of paying his debts alone. This was followed by the Act of February 24th, 1834, the 20th section of which is as follows: ‘ Whenever it shall satisfactorily appear to the executor or administrator, that the personal estate of the decedent is insufficient to pay all just debts and the expenses of administration, he shall proceed without delay, in the manner provided by law, to sell, under the direction of the orphans’ court having jurisdiction of his accounts, so much of the real estate as shall be necessary to supply the deficiency, and such real estate so sold shall not be liable, in the hands of the purchaser, for the debts of the decedent.’

“ The 32d section of the same Act confers the power on the orphans’ court ‘ which possesses jurisdiction over the accounts of such executor, administrator, or guardian’ to order money to be raised by a sale of real estate of a decedent situate in another county, and specifically points out the mode of proceeding.

“ These statutes contemplate a public sale, and any application founded upon them would necessarily have to be made to the orphans’ court of Philadelphia, which alone possesses jurisdiction over the accounts of the executrix. It was contended, however, that the orphans’ court of this county has jurisdiction of the present application, because it is made under the Act of April 18th, 1853, authorizing a private sale, and the statement was made that the purpose was not to apply the proceeds of the sale to the payment of any debt of Jacob Burkhart’s estate. It is difficult to reconcile this with the language of the petition, which declares that the object of the sale of the real estate in Schuylkill county is to raise money to pay the mortgage in Philadelphia.

“ The case of Spencer v. Jennings, 114 Pa. 618, is in its facts very like the case in hand. In that case, the. orphans’ court of Butler county had the jurisdiction of the accounts of the administratrix. She made application to the orphans’ court of Allegheny county for leave to mortgage the decedent’s real estate, situate in that county, for the payment of debts not of record, and because the sale would be for the best interest and advantage of all interested. The guardian of the minor children joined in the petition, and the order was made. The mortgage was afterward foreclosed and the premises sold by the sheriff. It was held that the orphans’ court of Allegheny county had no jurisdiction to make the decree; that it was exclusively within the jurisdiction of the orphans’ court of Butler county to determine whether any money should be raised by the sale or mortgage of the real estate of the decedent, and that the want of jurisdiction in the court of Allegheny county could be taken advantage of by the heirs of the decedent in an action of ejectment against those holding the title derived from the sheriff’s sale. The Act of 1853 declares that nothing contained therein shall be taken to impair or repeal the authority of any other Act of Assembly authorizing the sale of real estate by decree of court or otherwise. Its chief object is to extend the power to sell real estate, and to avoid special legislation, etc., not to supersede the wholesome *476statutory regulations which had been already provided for the sale or mortgage of real estate of decedents or of minors, by administrators or guardians. The Act of 1853 contains no provisions authorizing the court to decree the sale of the real estate of a decedent for the payment of his debts. Per Mr. Justice Trunkey. ¥e think this case decisive against the jurisdiction of this court to exercise the power invoked in the petition.

“ The 2d section of the Act of April 18th, 1853, enumerates the cases over which jurisdiction is conferred, viz.: ‘ Whenever real estate shall be held for or owned by minors, lunatics, or habitual drunkards so duly found by inquisition, for the sole and separate use of married women’ or in trust, etc. Purd. 1457, ed. of 1883.

“ The share of a minor may be sold with or without the co-tenants joining in the sale. But the shares of those not under disability can be sold only for causes mentioned in the Act. Price on Real Estate, 78, 79, citing Gilmore v. Rodgers, 41 Pa. 120 ; Kneass’s Ap., 31 Pa. 87; Ervine’s Ap., 16 Pa. 264. The executrix, who is the life tenant, and three of the heirs in the case before us are sui juris, and no disability has been shown to prevent them from making their own contracts and conveyances.

“As to the minors, the court has jurisdiction to decree a sale of their respective interests, but it is sufficient to say that their guardian has presented no petition showing reasons why their interest should be sold, nor is it proposed in this proceeding that he shall give bail. The bond offered is that of the executrix alone, and through her deed alone is the whole title of this lot to be conveyed to the purchaser. While the jurisdiction of the orphans’ court to decree a private sale, whenever real estate is subject to the lien of decedent’s debts not of record, is also declared in the 2d section of the Act of 1853, it must be kept in mind that no such debts are mentioned in the petition, and the petitioner asserts that there are none. If any such debts existed, the orphans’ court of Philadelphia, the forum of the accounts of this executrix, could alone authorize her to make sale of the decedent’s real estate.

“ Besides this, in any sale made under the Act of 1853, the money arising therefrom after the payment of liens is substituted for the land as regards the ownership and enjoyment thereof, and must be held for the use of the same persons and for the same estate and interest as the real estate sold had been held. Act of 1853, § 6; Spencer v. Jennings, supra.

“ Should we, therefore, make a decree for the sale of the unincumbered real estate of the decedent in this county, it would not authorize the executrix to apply the proceeds to the payment of a mortgage on other real estate in Philadelphia. .

“ It was argued, under the Act of 1867, a judicial sale of the property in Philadelphia would not divest the lien of the mortgage. The same Act is in force in Schuylkill county. We do not see how it is in the way of a sale of other unincumbered real estate by virtue of an order of court of competent jurisdiction where proper ground for the exercise of the power is presented.'

*477 “And now, January 7th, 1889, the petition is dismissed for want of jurisdiction by the court.”

The assignment of error was as follows:

“Exceptions by the Petitioner.

“ The court erred in dismissing the petition for want of jurisdiction.”

H. E. Garsed, with him Wm. B. Wells, for appellant.

A mortgage is not such a debt that a petition to sell real estate to pay it could be presented to the orphans’ court under the Acts of either March 29, 1832, or February 24, 1834, as a mortgage is not a debt that would be discharged by a judicial sale, since the Act of March 23, 1867, Purd. 591, § 135, Grice’s Ap., 4 W. N. C. 208.

Mortgages should not be scheduled among the debts, though it would be a convenient practice for the petitioning representatives of the decedent, to note them at the end of the schedule as debts secured by mortgage upon the decedent’s realty. Bloomer’s Est., 11 Phila. 92.

The petition in this case discloses four grounds, either of which is sufficient to give jurisdiction to the orphans’ court of the county in which the lands are situated to order a private sale under the Act of April 18th, 1853. 1st. It is acquired by last will. 2d. Four of the present owners are minors, and it is to their interest and advantage that the sale should be made. 3d. The title is subject to the lien of debts not of record by reason of the death of the owner within five years. 4th. It is granted in trust for a special or limited purpose.

Upon the third ground, it is immaterial that the petitioner believes there are no debts not of record. Theoretically, it is subject, though no debts be known to exist. Price on Beal Estate Act, p. 97. The object of this provision is to free the title, and the lien is transferred to the money.

There is no other Act under which a private sale is possible, and the petition sets forth the title and brings all the parties before court, all of whom unite in the application. It is unimportant that the guardian is not the petitioner; he is before the court, and the court may, therefore, grant the proper relief and make such decree as it seems proper. It has the same control of the subject as a court of equity. Postlethwaite’s Ap., 68 Pa. 477. The guardian can be authorized to join with the other parties in making title and give security.

In Spencer v. Jennings, 114 Pa. 618, the petition was under the Act of 1853, for leave to mortgage, for payment of debts not of record. This could have been done under the old Acts. Moreover, the minors were not before the court by their duly-appointed guardian.

Feb. 20, 1889.