Carney v. Merchants' Union Trust Co.
| Decision Date | 14 February 1916 |
| Docket Number | 414 |
| Citation | 97 A. 470,252 Pa. 381 |
| Parties | Carney, Appellant, v. Merchants' Union Trust Company |
| Court | Pennsylvania Supreme Court |
Argued January 13, 1916
Appeal, No. 414, Jan. T., 1915, by plaintiffs, from decree of C.P. No. 4, Philadelphia Co., Dec. T., 1912, No. 2036, in equity, dismissing bill in equity for an accounting, in case of Earl Arthur Carney, Stanley Arnt Carney, Charles Aschenbach, William Aschenbach, Daniel Herzog, Amy L Aschenbach, Mabel Stella Aschenbach and Emerson Aschenbach v Merchants' Union Trust Company, Trustees of the First Methodist Church of Asbury Park; St. Paul's Methodist Episcopal Church of Ocean Grove; Methodist Episcopal Hospital; Trustees of the Nazarene Home for the Aged; Richard W. Sutcliffe, as Executor under the Will of Charles Herzog, deceased, and in his own right; Clara Herzog, Trust Company of Easton. Affirmed.
Bill in equity for an accounting. Before CARR, J.
The opinion of the Supreme Court states the facts.
The court on final hearing dismissed the bill. Plaintiffs appealed.
Error assigned was the decree of the court.
The decree of the court below is affirmed without prejudice to the plaintiffs to proceed for relief in the proper form.
E. Spencer Miller, with him Alfred H. High, for appellants.
Louis Barcroft Runk filed a paper book and argued as amicus curiae by leave of court.
No paper book or appearance for appellee.
Before BROWN, C.J., MESTREZAT, STEWART, FRAZER and WALLING, JJ.
Charles Herzog died testate in March, 1911, domiciled in Duval County, Florida, and seized of certain real estate in that county on which he had given an option to purchase at $12,000. Letters testamentary on his estate were granted to Richard W. Sutcliffe in Philadelphia County, this State, and in Duval County, Florida. The assignee of the optionees exercised the option to purchase the real estate, and by deed dated January 19, 1912, in which the consideration was stated to be $12,000, the executor, a defendant in this proceeding, conveyed the property to the purchasers. By a deed of the same date, containing a clause of special warranty and stating the consideration to be $10 and other good and valuable consideration, Mrs. Herzog, the widow and a defendant here, also conveyed the property to the purchasers. Under the advice of counsel that, by the law of Florida, Herzog's will was revoked by his subsequent marriage to Mrs. Herzog and that she was, therefore, the owner of the land, the purchase-price of the real estate was paid to her. In a proceeding instituted by her, the Supreme Court of Florida, however, subsequently held this to be an erroneous view of the law, and that Mrs. Herzog had only a dower interest in the land.
In September, 1912, Sutcliffe filed his account as executor with the register of Philadelphia County, and an adjudication was filed October 10, 1912, by the Orphans' Court. The legatees, the plaintiffs in this proceeding, were represented by counsel at the adjudication and asked that Sutcliffe be surcharged with the $12,000, the proceeds of the sale of testator's land in Florida. The auditing judge thought the claim to surcharge was at least premature before an accounting for the testator's assets in Florida, the place of his domicile. The judge declined to act on the suggestion of the legatees that he order the accountant, to whom letters were also granted in Florida, to file an account in that state, on the ground that the Florida court was the proper court to compel such an accounting. The judge held, however, that if it was the duty of the accountant to bring the assets in Florida into distribution here, and if after a reasonable time he did not do so, a petition to the Orphans' Court of Philadelphia County for his removal or for an order to enter security would seem to be the proper course. The claim of the legatees to have the accountant surcharged was at that time refused without prejudice to their right to proceed in accordance with the auditing judge's suggestion. They excepted to the adjudication because the judge refused to surcharge the executor with the purchase-price of the Florida real estate, and the exceptions are still pending and undisposed of in the Orphans' Court.
Subsequently, on the application to the Orphans' Court by one of the legatees, the executor was cited to show cause why he should not be dismissed from his office or be required to enter security for the faithful performance of the trust. An examiner was appointed who reported the facts, but the proceeding remains undisposed of.
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