The opinion of the court in each appeal was delivered, May 17th 1873, by
Agnew, J.Dundas’s Appeal.
The decision of the Orphans’ Court in this case was against its own jurisdiction, and in this there was error. It was said by Black, C. J., in Whiteside v. Whiteside, 8 Harris 473, “if there be anything, besides death, which is not to be doubted, it is that the Orphans’ Court alone has authority to ascertain the amount of a decedent’s property, and order its distribution among those entitled to it.” The exclusiveness of this jurisdiction is sustained by numerous modern decisions, to a few of which I may refer: Shollenberger’s Appeal, 9 Harris 341; Ashford v. Ewing, 1 Casey 213; Black’s Executor v. Black’s Executor, 10 Casey 354; Musselman’s Appeal, 15 P. F. Smith 480. The contest *480between tbe courts and tbe legislature spoken of by Lewis, C. J., in Bull’s Appeal, 12 Harris 286, as to the extent of this jurisdiction, was settled by the Act of 18th of April 1840, Brightly’s Purdon 300, pl. 167. That act authorized the Orphans’ Court to appoint auditors on the application of the creditors, as well as of executors and administrators, and on the application of legatees, heirs or other persons interested, to make distribution of the estate in the hands of executors and administrators, to and among the persons entitled to the same. In Kittera’s Estate, 5 Harris 416, it was said this embraced creditors, next of kin, and legatees. “ The right of each (says Judge Lewis) to be heard in support of his claim, and in opposition to every claimant who interferes with it, is necessarily involved in the right to demand payment.” Further on he says : “ The power to decide all questions necessary to- a proper distribution of the fund follows the power of distribution and vests in the Orphans’ Court as a necessary incident to the jurisdiction. That court is as competent as the Common Pleas, to determine all questions of law, as the judges of both courts are the same, and the Orphans’ Court has ample authority to send an issue to the Common Pleas for the trial of facts by the jury:” Sect. 45, Act 29th March, 1832, Bright. Purdon, p. 768, pl. 55. This language is repeated with emphasis in Bull’s Appeal, supra, and in Black’s Executor v. Black’s Executor, supra. Thompson, J., repeats the remark of Woodward, J., in Shollenberger’s Appeal, supra, that the jurisdiction of the Orphans’ Court, “within its appointed orbit, is exclusive, and therefore necessarily as co-extensive as the demands of justice.” It is very clear, therefore, that the Orphans’ Court, in a proceeding to distribute an estate among legatees, next of kin and heirs, has ample power to inquire into and determine all questions standing directly in the way of a distribution to these parties.
The specific remedy given to a legatee to recover his legacy comes in here to strengthen the general jurisdiction and puts an end to all question. It is said, in a very excellent treatise on the Intestate System of Pennsylvania, by E. G. Scott, Esq., p. 450, that the Orphans’ Court has no jurisdiction for the recovery of a legacy, unless the same is charged upon or is payable out of real estate. But the learned author probably meant no exclusive jurisdiction. The 47th section of the Act of 24th February 1834, relating to executors and administrators, provides, that “ executors, after one year has elapsed from the granting of administration of the estate, upon the requisition of any legatee, or any other person interested, shall pay and deliver under the direction of the Orphans’ Court having jurisdiction of their accounts, all such legacies as are due and payable by them, &c., &c., and if there shall be a residue, distributable under the intestate laws of this Commonwealth, they shall also distribute the same, and the proceedings, in any such case, shall in all respects, whether of *481security or otherwise, be the same as hereinbefore provided in the cases of distribution by administrators of the estates of decedents intestate, so far as the nature of the case will admitVide sections 39, 40, 41, Act of 24th February 1834, Purdon by Brightly 302, pl. 176, 177, 178. This act is followed by the Act of 16th of June 1836, relating to the jurisdictions and powers of the courts, which, in the 7th clause of the 19th section, confers upon the Orphans’ Court express jurisdiction, in “ Proceedings for the recovery of legacies;” Brightly’s Purd. p. 765; The jurisdiction being thus beyond doubt, the manner of proceeding is equally clear, and is specifically set forth in the 37th section of the Act of 29th of March 1832, Bright. Purd. 766, pl. 17, 18, et seq. This is by the petition of any person interested, whether such interest be immediate or remote, setting forth facts, necessary to give the court jurisdiction, the specific cause of complaint, and the relief desired, and supported by oath or affirmation. The acts cited were reported by the commissioners to revise the laws, and are to be viewed together, as constituting an harmonious system for the settlement of estates of decedents, and the government of the Orphans’ Court.
Thus it is very'clear, that every legatee has a personal remedy in the Orphans’ Court, for the recovery of his own legacy, and the Act of 29th of March 1832, also furnishes ample means of reaping the fruit of a recovery by execution, attachment and sequestration. Upon this petition, if necessary, the Orphans’ Court would be bound to appoint one or more auditors under the Act of 13th April 1840, supra, to make distribution, or if a proceeding is already in progress, a decree upon the incoming petition of the legatee would await the report. Each legatee or distributee is entitled to proceed for the recovery of his own legacy or share. It is true, that legatees have an additional remedy by action of debt, detinue, account render, or on the case, against executors having sufficient assets to pay the debts and legacies : Act of 24th February 1834, § 50. But the common-law form of action is inconvenient and carries the remedy into a court having no jurisdiction to settle the executor’s account, and hence the act provides, that on a plea of a want of assets the action must be suspended until an account is settled in the Orphans’ Court, and the amount of the legacy, or its pro rata, ascertained: Sect. 53, Purd. by Brightly 3103, pl. 188.
It remains now to inquire, whether this petition conforms .to the 57th section of the Act of 29th March 1832, by setting forth facts necessary to give the Orphans’ Court jurisdiction. It plainly does. It sets forth the will of the late James Dundas, duly proved and registered, the bequest to the children of William H. Dundas, in equal shares, their number, and that the petitioner is one of them, and his proportional share, the issuing of letters testamen*482tary to the executors, the filing of an inventory and settlement of two accounts showing large assets, to a share of which the petitioner is entitled, and prays that the surviving executors shall pay over to the petitioner the full amount of his share and interest in the estate, as soon as the same shall be ascertained, after allowing for, and deducting all sums of money that the petitioner has received. These facts give jurisdiction to the Orphans’ Court, to compel distribution by the executors, and payment of the petitioner’s share to him. Had the petition set forth nothing more the consequence would have been plain. The executors, to protect themselves, would have set forth the assignment in their answer, and cited the assignee to defend pro interesse suo. This would have brought from the petitioner a replication of fraud and deceit, in procuring the assignment. The paper thus standing in the way of distribution, there being two claimants to the same legacy or share of it, the jurisdiction of the Orphans’ Court necessarily attaches, in order to remove the barrier to the payment of the legacy. The language of Judge Lewis, in Kittera’s Estate, directly applies, that each one must be heard in support of his claim, and in opposition to every claimant who interferes with it, and that the power to decide all questions essential to distribution follows the power to distribute.
The Orphans’ Court having power to determine whether the petitioner or his alleged assignee is entitled to payment of the legacy, it is evident the court is not deprived of its jurisdiction, by the setting forth of the alleged fraudulent assignment in the first instance, followed by appropriate prayers to have it set aside, and for a citation to the assignee.
Indeed, the proceeding in this form, is better adapted to decide the controversy at once preliminary to final distribution. The parties are all brought in at once, and the decree will finally dispose of the whole controversy, leaving the executors free from doubt as to the person to receive payment. Nor are we wanting in authority as to the power of a court in a distribution proceeding to determine the title of contesting claimants to the same fund as an incident of the distribution. In Souder’s Appeal, 7 P. F. Smith 498, it was held, that the auditor making distribution of money arising from a sheriff’s sale, had power to determine' the ownership of a judgment between contesting claimants, and that the defeated claimant under the Act of 1886, relative to executions, was entitled to demand an issue: See the cases cited therein. The petition in this case is unnecessarily prolix, and sets forth matters of evidence merely. But substantial facts are set forth, sufficient to give the court jurisdiction to determine the ownership of the legacy and decree payment to the plaintiff, if he be entitled to receive it.
The decree of the Orphans’ Court sustaining the demurrer is therefore reversed, the demurrer overruled, and a 'procedendo *483awarded, and the defendants are ordered to pay the costs of this appeal, the costs below to abide the event of the proceeding.
Lippincott’s Appeal.
The decision in Dundas’s Appeal, just rendered, makes it unnecessary to discuss this case. The petition of William O. Dundas, being reinstated and a procedendo awarded, the retention of the shares of the estate in controversy in the power of the Orphans’ Court, until the further order of the court, is necessary, to answer the claim of the successful party, when the litigation is ended. So much of the decree of the court is therefore affirmed, with costs to be paid by the appellant.