Concurring and Dissenting Opinion by
Mr. Chief Justice Bell:I believe that certain important facts have been overlooked, hence this Opinion.
*419Abraham M. Ellis formed a partnership with his three sons, Martin and Sidney who are plaintiffs and appellees, and Herman who is one of the defendants and the appellant herein. Abraham was the owner of an undivided one-fourth interest in the partnership. Abraham died and appointed his sons, Martin, Sidney and Herman and also his daughter Ruth, and his counsel, Sylvan M. Cohen, executors of his will. Testator’s sons had a “falling out.” Although the record is not clear, it would appear that Martin and Sidney thereafter filed a bill in equity in three different Courts in Philadelphia. In each, they asked the Court to restrict the sale to the partners themselves — a prayer which it is difficult to imagine any Court would order or approve.
Herman, who we repeat is a defendant, co-executor and the appellant herein, contends (1) that the Common Pleas Court has no jurisdiction of the matter and (2) that prior approval of the Orphans’ Court is necessary to permit any of the co-executors to bid at the sale, or to purchase at such sale the partnership assets in their individual capacity, even though the decedent Abraham had only an undivided one-fourth interest therein.
With respect to appellant’s first contention, I agree with the majority that the Court of Common Pleas sitting in Equity, and not the Orphans’ Court, has jurisdiction of a sale of partnership assets. The Act of June 16, 1836, P. L. 784, §13, 17 PS §282(1), clearly and specifically gives to the Court of Common Pleas of Philadelphia “the power and jurisdiction of courts of chancery, so far as relates to: I. The supervision and control of partnerships, . . .”
I agree with the majority that §546 of the Fiduciaries Act of April 18, 1949, P. L. 512, 20 PS §320.-546, is inapplicable. That Section relevantly provides, “The personal representative in his individual *420capacity* may bid for [and] purchase . . . real or personal property belonging to the estate, subject, however, to the approval of the Court, and under such terms and conditions as it shall direct . . . .” I believe that this Section, considered as a whole — and especially taking into consideration the comment to §546, which was made by the Joint State Government Commission — does not cover or include a sale of partnership assets which is conducted under the jurisdiction and supervision of the Court of Common Pleas,— even though as here the decedent owned an undivided interest therein. The property being sold (as the majority point out) is not property belonging to the estate of the testator.
With reference to jurisdiction of the Orphans’ Court, Freihofer Estate, 405 Pa. 165, 174 A. 2d 282, pertinently said (pages 167, 168) : “. . . The Orphans’ Court has exclusive jurisdiction of decedents’ estates, of testamentary fiduciaries and their control, removal, discharge and surcharge and, of course, their administration and their accounts, and also of certain enumerated inter vivos trusts and, under certain circumstances, the title to personal property . . .
“ 'In Rogan Estate, supra, the Court said (page 140): “ ‘This section [Article III, §301]** considerably broadened the scope of the court’s jurisdiction and jurisdiction now exists where the following situations arise: (1) If the personalty was in decedent’s possession, actually or presumptively, at the time of death; (2) if the personalty came into the possession of decedent’s personal representative subsequent to his death; (3) if neither (1) nor (2) exist, but if the personalty was “registered” in the name of decedent or his nominee [or in the name of decedent and/or *421other persons]; (4) if there is an allegation by the personal representative that the personalty was in possession of the decedent when he died.’ ” ’
“The Orphans’ Court is also granted by statute all legal and equitable powers required for or incidental to the exercise of its jurisdiction.
“While it has often been said. that the Orphans’ Court is a Court of Equity, it is more accurate to say that ‘in the exercise of its limited jurisdiction conferred entirely by statute, it applies the rules and principles of equity.’ Williard’s Appeal, 65 Pa. 265, 267. Main’s Estate, 322 Pa. 243, 247, 185 A. 222. See also: Webb Estate, 391 Pa. 584, 138 A. 2d 435.”
It is clear, therefore, that the. Court of Common Pleas and not the Orphans’ Court has jurisdiction of the sale of partnership assets, even though a decedent owned a fractional interest therein.
With respect to appellant’s second contention that prior approval by the Orphans’ Court must be obtained, there is a rule which I believe is in principle relevant and applicable in this case — namely, the general rule which is aptly stated in Kelley’s Estate, 297 Pa. 17, 21, 146 A. 260: . . ‘If a trustee becomes the purchaser of property [i.e., the real property of decedent] at public sale, brought about or in any manner controlled by him, he will be presumed to buy and hold for the benefit of the trust. But this rule does not apply where the trustee is without control over the sale and is not instrumental in bringing- it about. In the latter case he may bid and become the purchaser of the property free from any trust on.his part’: MacDougall v. Citizens Nat. Bank, 265 Pa. 170, 173.”*
While these cases and this rule are not directly in point, the wise and equitable principle which they *422enunciate should be applied in this case. Martin and Sidney are both plaintiffs and defendants — in the latter instance, in their capacity as co-executors. In an action which has been brought by them as partners or individually against themselves as co-executors, they are in effect suing themselves. In this action they seek the right to purchase the partnership assets in their individual capacity. There is an obvious and great conflict of interest in this proposed sale. While technically, no prior approval of the Orphans’ Court is necessary, and a sale could be set aside by appropriate proceedings in the Court of Common Pleas or a claim for surcharge could be presented in the Orphans’ Court if fraud or collusion occurred, I believe that these are not adequate remedies. The facts and circumstances are so very unusual that I believe it is equitable, wise and necessary to secure the prior approval of the Orphans’ Court to all the executors to bid and purchase the partnership assets in their individual capacity, even though the sale of partnership assets is conducted by and under the Order of the Court of Common Pleas, and even though eventually all of the fiduciaries will have to account in the Orphans’ Court for Abraham’s interest.
Italics throughout, ours.
Of the Orphans’ Court Act of August 10, 1951, P. L. 1163, 20 PS §2080.301 et seq.
See also to the same effect, cases cited therein and Strickler’s Estate, 328 Pa. 145, 150, 195 A. 134.