November 8, 1954
Appeals, Nos. 279 and 280, March T., 1954, from decree of Orphans' Court of Mercer County, March T., 1952, No. 9, and March T., 1953, No. 10, in Estate of Mary Sweetser Craig, deceased. Order affirmed. Proceeding upon petition of executor and citation against residuary legatees to show cause why they should not be restrained from prosecuting suit in federal court. Order entered restraining prosecution of federal suit, opinion by RODGERS, P.J. Legatees appealed.
William Carson Bodine, with him John D. M. Hamilton, T. A. Sampson, Pepper, Bodine, Frick, Sheetz & Hamilton, and Stranahan & Sampson, for appellants.
William H. Eckert, with him Milford L. McBride and Milford L. McBride, Jr., McBride & McBride, and Smith, Buchanan, Ingersoll, Rodewald & Eckert, for appellee.
Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
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OPINION PER CURIAM
The distinction between the concurrent jurisdiction of the Federal or Common Pleas Courts and the Orphans' Court involving proceedings in personam (Commonwealth v. Easton Trust Company, 347 Pa. 162, 32 A.2d 215) and the exclusive jurisdiction of the Orphans' Court involving the accounting and distribution of a decedent's estate (Thompson, Trustee, v. Fitz-Gerald, 329 Pa. 497, 198 A. 58, affirmed in 305 U.S. 456), a proceeding in rem, is accurately and comprehensively
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considered in the opinion of the court below. The fact that the same fiduciary, appointed by the respective decedents, is representing both estates presents no obstacle to the parties in interest in prosecuting claims against the estate of either decedent. Interested parties may, upon application to the court, use the name of the fiduciary in proceedings against such fiduciary: Megargel Estate, 349 Pa. 14, 17, 36 A.2d 319. The court also may, in its discretion, remove a fiduciary in such a situation. A removal proceeding is actually pending in this case. See Hartman's Estate, 49 Pa. Superior Ct. 203.
The Order of the Orphans' Court is affirmed on the opinion of Judge RODGERS, at the cost of appellants.
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