delivered the opinion of the Court, February 6th 1882.
The testator directed his executors, in case, within five years after his decease, a respectable number of persons could be found to form the nucleus of a Presbyterian congregation in Torresdale, to set apart ground, erect a church building thereon, and convey the same to the Trustees of the General Assembly of the Presbyterian Church in the United States, in trust for the use of said congregation, and with power, whenever said trustees should deem it expedient, to convey the same to such church and congregation. He further directed the executors, on completion of the building, to deposit five thousand dollars in trust, the trustees to pay the net income toward the support of the pastor of the said church forever. And in case no congregation connected with the Presbyterian church should be formed within said period, he desired the bequests intended for the erection of the building and support of said chui’ch to fall into and become part of his residuary estate.
The testator apprehended that his project for founding a *458church, might fail for the want of sufficient Presbyterian element in the neighborhood. His will is silent as to the mode of ascertaining this fact, and as to who should determine how many persons would constitute the nucleus. It may he justly inferred that all persons in the neighborhood who would attend worship and belong to the congregation in Torresdale, would be included in the number. Contemplating a small beginning, he ordered the conveyance to be made to an already organized and permanent Presbyterian body. The implication is that the persons entitled to the bounty must bo organized under the laws and usages of the Presbyterian Church, and be subject to its discipline. If there is no such organization the plaintiffs have no right; and if there is, such as the testator intended, the devise and bequests will not be defeated by any discretionary act of the executor. When the fact of the nucíeus is established; the duty of the executor is plain, and the executor is not made the final judge of its existence. The direction is to locate, build, convey and deposit, in case the described persons can be found ; and if not found the bequests become a part of the residuary estate. This is not a case for the executor to form an opinion that the circumstances render it unnecessary, inexpedient and impracticable to recognize a duly organized Presbyterian Church which fulfils the requirements of the will in order to be entitled to the bounty.
The plaintiffs aver that the church organized at Torresdale fulfills the condition in the will; the residuary legatees allege that the organization is a sham, and one of them decidedly expressed to the executor her unwillingness that the church should be erected. In this strait betwixt two, the executor declined to proceed to build, saying, “ They would prefer a bill in equity to be filed, a master appointed, and an order of court obtained.” It is apparent that the actual contest is between the plaintiffs and residuary legatees, and the evidence is persuasive that, but for the opposition of said legatees and those in their interest, the executor would have treated the organization as real and entitled to the benefits of the will.
Among the findings of fact by the court below are these: That under the directions of the proper presbytery, on May 6th 1878, at Torresdale, The Macalester Memorial Church was duly constituted, consisting of fourteen members, and that three others were subsequently added; that the name of said church, on October 8th 1878, was placed on the roll of presbytery ; that the condition contained in the will upon which depends the erection of a building for the use of a Presbyterian Church, exists at Torresdale, that a respectable number of persons has been found to form the nucleus of a congregation which has been duly organized into a church, and is now in connection *459with the general assembly of the Presbyterian Church in the United States. We are not convinced that the court erred in the finding of facts. It would be mere supererogation to add to the remarks of the learned president of the Common Pleas, in review of the testimony.
The executor rightly furnished a copy of the will to the presbytery and thereby invited their attention to consideration of the propriety of organizing a church at Torresdalo ; also to the necessity, if the object of the testator was to be carried into effect. Presbytery acted officially, regularly; its good faith is not assailed, and if its judgment is not sustained, it is not borne down by preponderance of testimony. In the absence of evidence to the contrary, it is presumed that church judicatories, in disposing of matters within their jurisdiction, act honestly and well, and the court rightly ruled that “it rests on the defendants to make good, by competent proof, either the want of good faith, or gross error of judgment, in presbytery, to successfully maintain the stand which they have taken.”
The appellant may deny the jurisdiction of the Court of Common Pleas at any stage of the proceedings. That court and the Orphans’ Court have concurrent jurisdiction of certain subjects; for instance, a legatee may- maintain an action in a common-law court for the recovery of a legacy, and the Orphans Court has jurisdiction of proceedings for the recovery of legacies. The Orphans’ Court is a special tribunal for specific cases, and, although it has equity powers for the disposition of such cases, it is not vested with the general powers of a court of equity. It has exclusive jurisdiction to ascertain the amount of the estates of decedents and order their distribution among those entitled, whether creditors, legatees or distributees. Put the remedy of the creditor to establish his debt in a common-law-court is not taken away: Hammett’s Appeal, 83 Pa. St. 392. And in some circumstances he may have execution upon his judgment. Legatees are authorized, by the Act of February 24th 1834, to proceed by action in a common-law court to recover a bequest of money or other goods or chattels, and the procedure enables the legatee to enforce payment when the executor has assets, without interference with the exclusive jurisdiction of the Orphans’ Court in the settlement and distribution of the estates of decedents: Burt v. Herron’s Ex’rs, 66 Pa. St. 400. The collection of judgments in favor of creditors or legatees may he stayed for a proper time to await settlements or other proceeding in the Orphans’ Court. After a legatee lias obtained judgment the executor may aver the want of assets, and thereupon execution shall be stayed until an account shall be taken in the proper tribunal, and the amount, if any, payable on such legacy, be ascertained.
*460That this is a proper case for determination by a proceeding in equity is unquestioned. The bill is not to compel the distribution of the testator’s estate, but to establish the right of The Macalester Memorial Church under the sixth paragraph of his will. This right being established, the decree accords with the provisions of the will. Its enforcement will be governed by similar principles as are prescribed in the statute providing for the recovery of legacies in the common-law courts. The defendant has not averred that the land is necessary for payment of debts, or that there is a deficiency of assets for payment of the bequests. Should such averment be made it would be followed by action of the court in granting a stay till an account be taken and tbe question of deficiency bo determined.
As already stated, it appears that the executor declined to set apart the laud and erect tbe building, agreeably to the wish of the residuary legatees. There was sufficient doubt of the claimants’ right to justify the delay until the claim, disputed by said legatees, should be adjudicated. In an action at law for the recovery of a legacy, tbe statute directs the court, according to justice and equity, either to award costs or no costs out of the testator’s estate, or if the executor has been faulty in delaying payment, without sufficient excuse, then the costs shall be paid by him out of his own estate. That rule is fitting in this case. The executor has made no unreasonable delay, and the vigorous defence has been made in good faitb, if not at the instance, in the interest of them who denied the plaintiffs’ right. We are of opinion that tbe costs should not be paid out of the fund in controversy, but out of the residuary moneys of the estate of the decedent.
Decree affirmed, and appeal dismissed at the costs of the appellant; the costs, including costs in the court below, to be paid out of the estate of the testator.