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DARLINGTON v. REILLY (ET AL. (01/04/54)

January 4, 1954

DARLINGTON
v.
REILLY (ET AL., APPELLANT) NO. 1



Appeals, Nos. 290 and 291, Jan. T., 1953, from decree of Court of Common Pleas No. 5 of Philadelphia County, March T., 1946, No. 4068, in case of Jesse Darlington et al. v. Paul Reilly, Trustee for The Hiram Memorial Park et al. Decree affirmed; reargument refused January 13, 1954.

COUNSEL

I. Emanuel Sauder, for appellants.

William D. Harkins, with him T. Ewing Montgomery, for appellees.

J. Wesley McWilliams, for substituted Trustee-receiver.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Jones

[ 375 Pa. Page 579]

OPINION BY MR. JUSTICE JONES

This is the third time that this litigation has been before us in some phase or other: see 358 Pa. 380, 57 A.2d

[ 375 Pa. Page 580861]

, and 363 Pa. 72, 69 A.2d 84. And, like the last preceding occasion, the appellants are not parties to the litigation. Then, they were "would-be intervenors" whose petition for leave to intervene had been denied by the court below. Now, they are disappointed claimants, the denial of whose claims against the trust res or the trustee-receiver is the grievance of their present appeal. The factual background leading up to and during most of the litigation was succinctly stated in the opinion of our present Chief Justice in 363 Pa. 72, 69 A.2d 84, and need not be repeated here. The various legal controversies that have been developed in this matter have taken up far more time of the courts than such matters deserved.

The appellants make two contentions, -- (1) that the court below erred by appointing a special master or assessor to hear testimony and report on the trustee-receiver's account and on claims against the fund accounted for and thereby rendered legally ineffectual the proceeding before it; and (2) that the appellants, as the assignees of claims of agents to commissions for the sale of burial lots out of the trust realty on contracts from which the trustee-receiver has received and accepted payments, are entitled to have such claims paid out of the fund for which the trustee-receiver has accounted.

Our former equity rules are applicable. Equity Rule 15 provided in presently material part that "... examiners, masters or auditors [shall not be] appointed [in equity], save in those instances where by statute or these rules it is expressly so provided." In application, Rule 15 has been construed to mean that a court of equity lacks power to appoint a master or auditor to hear and pass upon facts or questions of ...


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