We concur in that portion of the opinion which decides that under the facts of this case jurisdiction was not in the common pleas court but exclusively in the orphans' court. For this reason alone the decree of the court below must be reversed.
If the question were still open and had not become a settled Pennsylvania rule of property which only the legislature should now change, we would strongly question the principle ofOrr's Estate, 283 Pa. 476, 129 A. 565, and the cases which follow it. In the absence of fraud, accident or mistake, and when the price is adequate, we can discover no reason why an honest sale made by a fiduciary should be set aside merely because of a subsequent higher offer. A beneficiary is not sacrosanct and a fiduciary ought not to be permitted to repudiate his contract any more than he could do if he were acting as an individual. Curiously enough, the effort to benefit trusts and persons under disability, under the above principle, has in fact, worked to their detriment, as evidenced by the results, because of the uncertainty in fiduciary sales of real estate. *Page 200
Conceding that the principle of Orr's Estate, supra, should not now be changed, nevertheless we would not extend its operation. This Court has held that it will not set aside a sale after final settlement and transfer of title merely because of a higher offer. We would refuse the aid of equity to cancel such a sale where there was no fraud, accident or mistake, where the purchaser has deposited the full consideration money and the vendor has given the purchaser possession of the premises and a valid assignment of the leases. In our opinion under the facts of this case, the parties have so consummated their agreement that it would be most inequitable to set it aside.
We also suggest that the attention of the Legislature might well be called to the question of the advisability of changing by statute the effect of the decision in Orr's Estate and the cases which have followed it.