Mauser v. Lerch et al., Executors.

trol the action of the executors in respect to the other one-half interest in the agreement, of which one-half interest the Orphans' Court has undoubted jurisdiction. Nor are we willing to concede that she now has title to the onehalf interest in the agreement. Undoubtedly, she takes a one-half interest in all the personal estate of which her husband died possessed in the same manner as though he had died intestate (Wills Act of June 7, 1917, § 23, P. L. 403), and, undoubtedly, this includes a one-half interest in this agreement which, as a chose in action, partakes of the nature of personal property (Cf. Coulter v. Rowe, 265 Pa. 386; Linsenbigler v. Gourley, 56 Pa. 166), and this interest descends to her as of the very moment of her husband's death: Cunningham's Estate, 137 Pa. 621; Huddy's Estate, 236 Pa. 276; Peebles's Estate, 157 Pa. 605. But this she takes subject to the payment of decedent's debts and expenses of administration, and until they have been ascertained and until specific property has been adjudicated to her by the Orphans' Court, she cannot, with certainty, assert here or elsewhere that she has an undefeasible title to a one-half interest in the chose in action. Conceivably, this very chose in action may be required to be marshaled as an asset for the payment of debts or expenses, and in that event she will acquire no interest in it, or, to state it more accurately, her present interest will be defeated. Until there is a final adjudication of her husband's estate in that court which has exclusive jurisdiction to distribute the estate amongst creditors and heirs, the entire personal estate is in the hands of the executors for the purpose of administering their trust and she cannot affirm that she has title to any specific item of his property. That this is a wise precaution is manifest from the allegations in the bill, whereby it appears (paragraph 26) that there are unliquidated debts of the decedent unpaid and also Federal and State taxes and costs of administration to be met.

If further authority is needed for the proposition that the Orphans' Court has jurisdiction, it will be discovered in a long line of cases, whereby many controversies, differing in facts, but involving the same principle, have been held to be beyond the purview of chancery: Henderson v. Stryker, 164 Pa. 170; Loomis v. Loomis, 27 Pa. 233; Mussleman's Appeal, 65 Pa. 480; Cascaden v. Cascaden, 140 Pa. 140; Yocum v. Commercial Nat. Bank, 195 Pa. 411; Hammett's Appeal, 83 Pa. 392; Wapples's Appeal, 74 Pa. 100; Erie Dime Savings and Loan Co. v. Vincent, 105 Pa. 315; Brotzman's Appeal, 119 Pa. 645; Tyson's Appeal, 191 Pa. 218; Miskimins's Appeal, 114 Pa. 530; Lafferty v. Corcoran, 180 Pa. 309.

Having arrived at the conclusion that equity has no jurisdiction, the injunction must be dissolved. Although it would seem logically to follow that the bill also be dismissed, a line of cases instructs us that we cannot dismiss the bill, even for want of jurisdiction, and even if the preliminary injunction is dissolved, unless a demurrer or answer (both are now called answers by the new equity rules-See Rule No. 48) explicitly raising the question of jurisdiction shall have been filed: Wright v. Barber, 270 Pa. 186; Davis v. Porch, 268 Pa. 376; Lyndall v. High School Committee, 19 Pa. Superior Ct. 232; Swainbank v. Yoder, 79 Pa. Superior Ct. 132. It is doubtful whether the bill can be dismissed upon motion of defendant without filing demurrer or answer; but since the only motion made at conclusion of plaintiff's case was a motion to dissolve the injunction, we need not pass upon the question as to whether a motion to dismiss can be considered in the absence of demurrer or answer.

Nor can we certify this case to the Orphans' Court. The Act of June 7, 1907, P. L. 440, and the equity rule (Revised 1924, Nos. 13 and 49), which provide for the certification to the law-side of the court for those cases of

Mauser v. Lerch et al., Executors.

which equity has no jurisdiction, refer, of course, to the law-side of the Common Pleas Court. There is no authority by which a certificate from the equity court to the Orphans' Court could be sustained.

Now, March 16, 1925, the preliminary injunction is dissolved.

From Edwin L. Kohler, Allentown, Pa.

NOTE.-Syllabus by the Court.

Lutton, Administrator, v. Powell.

Escheat-Decedent dying without kin-Sale of real estate―Jurisdiction of Orphans' Court-Acts of June 7, 1917, and April 18, 1923.

1. The matter of the escheat of property of an intestate who dies without known kin is a proper subject for inclusion in an act regulating the descent of property of intestates.

2. Section 24 of the Intestate Act of June 7, 1917, P. L. 429, is properly amended by the Escheat Act of April 18, 1923, P. L. 70.

3. The Commonwealth has the power not only to escheat property found to be without lawful owner, but also the power to assume control and custody thereof and bring it into the treasury of the State to await further proceedings by way of escheat.

4. The Act of April 18, 1923, P. L. 70, relates to procedure only and applies to the estate of a person dying prior to the date of the act.

5. Under the Act of April 18, 1923, P. L. 70, the Orphans' Court has jurisdiction to entertain a petition by an administrator of a person dying without known kin to sell the real estate of such person.

6. In such case, the administrator should file an account of the proceeds of the sale and notify the Auditor General that such proceeds are apparently subject to escheat.

Case stated. C. P. Beaver Co., March T., 1925, No. 305.

John A. Elliott, for plaintiff; Holt, Holt & Richardson, for defendant.

READER, J., Aug. 1, 1925.-This proceeding is now before us upon a case stated.

From the case stated it appears that Clara B. Berniece, whose administrator is plaintiff in the case, died intestate Oct. 9, 1922, being then a resident of the Borough of Beaver Falls, Beaver County, Pennsylvania. It is further stated as a fact that said decedent left no surviving spouse and no heirs or kindred capable or competent to inherit the real and personal property of which she died seized and possessed. Letters of administration were granted on Oct. 16, 1922, to the plaintiff as administrator of the estate of said decedent by the Register of Wills of the County of Beaver. Said administrator, by proceedings in the Orphans' Court of Beaver County, sold and conveyed all of the real estate of the said decedent, except that involved in the instant case, for the payment of the debts of the decedent, and the proceeds of this real estate, together with the personal estate of the decedent, were applied to the payment of the debts of the decedent and were sufficient for this purpose.

Later, the administrator, on Dec. 10, 1923, presented a petition to the Orphans' Court of Beaver County, at No. 12, December Term, 1923, praying the court to make an order for the sale of the remaining real estate of the decedent not required for the payment of her debts, under the provisions of the Act of April 18, 1923, P. L. 70, which act amends section 24 of the Intestate Act, approved June 7, 1917, P. L. 429. Upon this petition an order of sale was made by the Orphans' Court, and pursuant to this order, on Feb. 14, 1924, the plaintiff as administrator of said estate sold the two lots involved in

Lutton, Administrator, v. Powell.

the instant case to the defendant, Baker D. Powell, for the sum of $2605. Upon return made by the administrator, this sale was confirmed by the Orphans' Court of Beaver County, the confirmation becoming absolute on April 10, 1924. The purchaser, the defendant in this case, paid 10 per cent. of his bid; the balance, amounting to $2334.50, has not been paid. The plaintiff has tendered a deed to the defendant for the said land, purporting to convey to the defendant such right, title and interest in the said property as the said decedent had therein at and immediately prior to the time of her death, and has demanded of the defendant the balance of the purchase money. The payment of this balance has been refused by the defendant.

The defendant refused to pay the balance of said purchase money and take title to said land, on the ground that the Orphans' Court was without jurisdiction to make the order of sale for said land and to confirm the sale thereof. This action was then brought by said administrator against the defendant to recover the balance of said purchase money; and said action having been instituted, the facts were agreed upon by counsel for both parties and submitted to the court in the case stated above referred to.

The question submitted to the court for its decision upon the case stated is as follows: "If the court be of the opinion that, under the facts above set forth, including those set forth in the said petition, the said Orphans' Court had jurisdiction to make the said order and decree for the sale of the above described property; that the proceedings on said petition were regular and lawful; and that a deed executed and delivered in pursuance of said decree and proceedings would vest in the defendant, his heirs and assigns, such estate and interest in said property as the decedent had therein at and immediately before the time of her decease, and such interest and title therein as vested in the Commonwealth by escheat as aforesaid, then judgment to be entered in favor of the plaintiff for the sum of $2334.50; if not, then judgment to be entered in favor of the defendant for the sum of $260.50. The costs to follow the judgment, and either party to have the right of appeal to the Supreme or Superior Court, as the amount in controversy shall determine."

Section 24 of the Intestate Act of 1917, above referred to, reads as follows: "Section 24. In default of all such known heirs or kindred or surviving spouse competent to take as aforesaid, the real and personal estate of such intestate shall go to and be vested in the Commonwealth by escheat."

Said section, as amended by the Act of April 18, 1923, P. L. 70, above cited, reads as follows: "Section 24. In default of all such known heirs or kindred or surviving spouse competent to take as aforesaid, the real and personal estate of such intestate remaining after the payment of all just debts and legal charges, shall be sold by the executor or administrator of the estate, and the net proceeds of such sale shall be, by him, paid into the State Treasury for the use of the Commonwealth. Such sale shall be made only under the supervision of the court having jurisdiction of the estate and in accordance with the laws of the Commonwealth providing for the payment into the State Treasury of unclaimed funds in the hands of fiduciaries."

It was under the said Act of 1923 that the administrator above named undertook to sell the property in question. As stated, his petition was presented at No. 12, December Term, 1923, in the Orphans' Court of this county. The petition sets out the date of the death of Clara B. Berniece and the granting of letters upon her estate as above stated. It further sets out that she died seized of certain real estate, and that after the sale of certain parts thereof for the payment of the debts of the decedent, two lots of land in the

Lutton, Administrator, v. Powell.

said Borough of Beaver Falls remained, being those involved in the instant case, as more fully described in said petition. It is further averred in the petition that said decedent died leaving to survive her no known heirs or kindred or surviving spouse competent to take the real and personal estate. The petition prays for an order to sell said real estate pursuant to the provisions of the Act of April 18, 1923, above set out. Upon this petition an order was made on Dec. 10, 1923, authorizing and directing said administrator to make sale of said real estate at public sale. The order also directed the giving of notice by publication and hand-bills in the manner required by law and rule of court as to Orphans' Court sales generally. The administrator filed his bond, which was approved by the court; made sale of the real estate as above stated; made return thereof to the court, and the same was confirmed absolutely, as is also set out in the foregoing statement of facts.

It seems to us, in the first place, that if the Act of April 18, 1923, under which the sale was made, is a valid legislative act, the petition presented by the administrator for the sale of the real estate was sufficient to bring the proceeding within the terms of the act and give the court jurisdiction. The sale seems to have been regularly made according to the requirements of the act and our rules of court. Even in the event, however, of there being irregularity in the proceedings, such irregularities would be cured by the confirmation of the sale, assuming that the court had jurisdiction.

The case was submitted to the court upon the papers. The case was not argued orally before the court, nor were any briefs filed by counsel either for the plaintiff or the defendant. The question submitted for the consideration of the court is the general question above stated, as quoted from the case stated, and counsel have not more specifically stated any legal questions that may be raised by the general question stated or the decision of which may be necessary in order to decide that general question. We have not, therefore, had the assistance of counsel in directing our attention to legal phases of this case which may be important in deciding it. We have examined a great many statutes and decisions bearing upon what seem to us to be the controlling questions in the case. We may have overlooked some important question, but it seems to us that the questions hereinafter considered are controlling and determine the general question submitted to us.

It seems to us that the questions involved may be stated as relating, first of all, to the general validity and effect of the Act of 1923; and in the second place, as relating to the applicability of that statute to the estate of the decedent in this case, she having died prior to the approval of the Act of April 18, 1923. It seems to us that the Amending Act of April 18, 1923, is within the purview of a general intestate act such as the Act of 1917. The matter of the escheat of property of an intestate who dies without known heirs or kindred is a proper subject for inclusion in an act regulating the descent of property of intestates. It seems to have been so considered in this State from the time of the adopting of the Intestate Act of Sept. 29, 1787, 2 Sm. Laws, 425. The provisions of the Intestate Act of April 6, 1833, P. L. 207, the general act in force until the adoption of the Act of June 7, 1917, relating to escheat, are almost identical with those of the Intestate Act of June 7, 1917. We think there can be no question that the Amendment of 1923 is within the scope of the Act of 1917 and its title.

It will be observed that the Act of 1917, in section 24, simply declared the fact that under the circumstances therein stated the property in question should go to and be vested in the Commonwealth by escheat. As amended, this provision is omitted, and the act provides for a method of administering

Lutton, Administrator, v. Powell.

the property of such a decedent with a view to bringing its proceeds into the State Treasury. At the time of the enactment of this Act of 1923 there was in existence a very large body of legislation in the State relating to escheats in general and also relating to the escheat or taking over by the Commonwealth of various special forms of property.

The general escheat act is that of May 2, 1889, P. L. 66. It provides for a method of escheating property in the case of the death of any person seized of real or personal estate intestate, without heirs or known kindred or a widow or surviving spouse, as well as for the escheat of property under certain other circumstances. It outlines the procedure and also defines the jurisdiction of the courts. Under its provisions the Orphans' Court is given jurisdiction in the case of an escheat alleged to have arisen with reference to the property of an intestate.

In addition to this general act, there are numerous acts of assembly relating to the escheat of deposits uncalled for for a certain length of time, unclaimed dividends, money or property in the hands of fiduciaries unclaimed for certain periods of time by the beneficiaries, and property in other like situations as to which there appears to be no known ownership. Many of these acts of assembly provide for the making of reports to the Commonwealth by banking institutions, corporations, fiduciaries, individuals and others of such funds as may be in their hands falling within the provisions of the various acts of assembly, and for the taking of steps following such reports, or where knowledge of the existence of the property has come to the attention of the Commonwealth without such reports, to cause said property to be brought into the possession of the State Treasurer. These various acts provide for notice to be given by the Commonwealth before the taking possession of such property, the method of reducing it to the possession of the Commonwealth, and also provide methods by which persons claiming to be owners of the property may make claim to the same and recover the same from the Commonwealth. These provisions for securing the rights of possible owners are invariably of the most liberal character.

We deem it unnecessary to cite these various acts of assembly, except such of them as we shall refer to later as being those apparently referred to in the Amending Act of 1923. The provisions of these various acts, however, have been the subject of consideration by the courts, and it has been well settled that in general they are within the legislative power of the Commonwealth and not in violation of any provisions of the Constitution of the Commonwealth or provisions of the Federal Constitution relating to the impairment of the obligation of contracts or preventing the taking or seizure of property without due process of law. Among the decisions establishing the law with reference to the power of the Commonwealth, not only to escheat property but to take possession of property which is apparently subject to escheat, we cite the following:

In the case of Com. v. Dollar Savings Bank, 259 Pa. 138, the court passed upon the Act of April 17, 1872, P. L. 62, providing in general for the payment to the State Treasurer of deposits in certain savings banks and like institutions which had been unclaimed for a space of thirty years after the last deposit, etc. In construing the act, the court says: "The act requires that, in all cases where, for a period of thirty years, any person has failed to exercise rights of ownership over a savings fund deposit, the amount thereof shall be handed to the State Treasurer, whose receipt it declares a sufficient protection to the prior custodian. The rights of the owner are amply protected by giving him a cause of action against the Commonwealth, with full pro