
    Supreme Court of Pennsylvania. MIDDLE DISTRICT.
    WAPPLE’S APPEAL.
    The common pleas has not jurisdiction over an executor in the performance of a trust annexed to his office which he accepted, by taking out letters testamentary, and which he, as executor, is bound to fulfill.
    This jurisdiction is in the orphans’ court.
    Sharswood and Williams, JJ. dissent.
    Appeal from the court of common pleas of Centre county. In equity.
   Opinion delivered July 2, 1873, by

■ Mercur, J.

We see no error in permitting the mortgagors to pay into court the amount due upon the mortgage, and in ordering satisfaction to be entered upon the mortgage. The sum paid was the full amount claimed by the appellant, and he' was in no wise prejudiced by its payment.

When, however, the court went further ; when, against the protest of the mortgagee, the court ordered the money to be invested in the name and for the benefit of a third party, it exceeded its powers. It had no such jurisdiction over the trustee nor over the fund.

The appellant was the surviving executor and trustee under the will of John Porter, at the time of the execution of said will, and at the death of the testator, he and the executors were residents of the county of North-umberland. The church, for whose use and benefit the fund was devised, then was and still is in the same county. The will was proved in said county, and letters testamentary thereon were granted by the register thereof. The orphans’ court of Northumberland county thereby acquired jurisdiction of their accounts. The executors were made trustees ratione officii, and not nominatim. It was a trust annexed to the office of executor, which they accepted by taking letters testamentary, and are bound as executors to fulfill. They are amenable to the orphans’ court as executors for the non-performance of that, as well as of other trusts imposed by the will. Innes’ Estate, 4 Whar. 184.

The 15th section of the act of 14th June, 1836, Pur. Dig. 1417, pl. 15, which gives to the courts of common pleas jurisdiction in cases of trust therein mentioned, not only restricts its exercises to “ the court of common pleas of the county in which any such trustee shall have resided at the commencement of the trust,” but it further provides, that nothing therein contained shall extend to trusts created by will or vested in executors or administrators, either by the words of the will, or by the provisions or operations of law, whenever such executors or administrators are by the existing laws amenable to the orphans’ court.”

In Wheatly v. Badger, 7 Barr 459, it was held, that where the will constitutes the executor a trustee, by name and not virtute officii, the orphans’ court had no jurisdiction over the trust. But in Brown’s Appeal, 2 Jones 333, that decision was overruled, and it was held, that although the trustees are appointed nominatim, yet the orphans’ court has concurrent jurisdiction with the common pleas in cases of testamentary trusts. That the object of the statute of 14th June, 1836, was to give power to the common pleas, and not to take it from the orphans’ court. It gives to the common pleas concurrent jurisdiction, except in cases where, by the proviso, jurisdiction is saved exclusively to the orphans’ court. Seibert’s Appeal, 7 Har. 53. Where the testamentary trust is given to the executors virtute officii, jurisdiction is exclusively in the orphans’ court. Innes’ Estate, supra; Brown’s Appeal, supra; Seibert’s Appeal, supra. Since the last of these decisions was made, the first section of the act of 7th April, 1859, Pur. Dig. 1423, pl. 54, has given to the orphans’ courts of the several counties of this commonwealth, full power and authority in all cases of trust derived under or created by any last will and testament, whether vested in executors or trustees, to dismiss such trustees from office, when there has been waste or mismanagement in the administration of said trust, or whenever the trustees shall fail or neglect to pay over the principal or income of the trust funds according to their duty under their several trusts, or fail to comply with any order of said courts in relation to said trusts; and shall further have power to make all orders for the securities and moneys belonging to said trusts.

The will of John Porter directs, “that my executors hereafter mentioned shall dispose of and sell all of the aforesaid bank stock;” and “when disposed of, sold by, my executors, they shall loan the proceeds,” and that “my executors shall have written out the bond and mortgage.” Thus, every act which the testator directed to be performed for the purpose of passing this fund over to the ruling elders for the use and benefit of the church, was to be performed by the executors virtute officii. Hence, it follows, that even the court of common pleas of Northumberland county, where the executor resided, had no jurisdiction over this trust fund, and still less authority is there for the court of common pleas of Centre county assuming its exercise.

The learned judge, therefore, erred in taking the funds out of the control of the appellant, and directing their investment. The rights of the several claimants to this fund must be settled in and through the orphans’ court of Northumberland county. There the appellant must settle his stewardship. To enable him to do this, the fund must be restored to him. This disposition of the case makes it unnecessary to consider the other assignments of error.

This cause came on for hearing on an appeal from the order of the court of common pleas of Centre county, and was argued by counsel at Harrisburg, and now, July 2d, 1873, on mature consideration thereof, it is ordered, adjudged, and decreed, that the, said order of the common pleas, permitting the ruling elders of the First Presbyterian Church of Northumberland, to take the said sum of $8,971.75 out of court, and directing its investment, be reversed and set aside, and that the rule granted to said elders be dismissed at their costs. And it is further ordered that the said trust fund be paid over to the appellant, and the costs of this appeal be paid out of the same; and the cause is remanded to the said common pleas with directions to carry this decree into execution.

■E. (5^ JE. Blanchard, and Comly, Esqs., for appellant; Beaver and y. Id. Orvis, Esqs., for appellee.  