this will and to adjudicate whether this plaintiff is an heir of the decedent under the provisions thereof. All of the other prayers for relief involve matters either relating to the interpretation of the will or the administration of the estate.
The properly constituted fiduciaries of this estate have proceeded in great detail with the administration of a very complex and confused situation. On their qualification they assumed control of large holdings of realty and personalty and have, it would seem, by the filing of their first and partial account and the submission of exceptions thereto to an Auditor appointed by the Orphans' Court of Centre County, moved with as much dispatch and under the direction of the said Court as could be expected under the circumstances. Certainly their administration is in rem. From the time of the appointment and qualification of these fiduciaries they were under a statutory responsibility to account to the Orphans' Court of Centre County for all assets in their possession.
If at any time from the moment the will was offered for probate in the Register's Office of Centre County up to the present time this plaintiff felt herself aggrieved she could be heard by the Orphans' Court to secure an interpretation of the will or, if determined to be a party in interest, to test through that court the propriety, the sufficiency or the promptness of the performance by the fiduciaries.
The principle involved here and the law applicable thereto is clearly set forth in Princess Lida of Thurn and Taxis v. Thompson, 305 U.S. 456, 465, 59 S. Ct. 280, 275, 83 L. Ed. 285, as follows:
'* * * Certain it is, therefore, that if both courts were to proceed they would be required to cover the same ground. This of itself is not conclusive of the question of the District Court's jurisdiction, for it is settled that where the judgment sought is strictly in personam, both the state court and the federal court, having concurrent jurisdiction, may proceed with the litigation at least until judgment is obtained in one of them which may be set up as res judicata in the other. On the other hand, if the two suits are in rem, or quasi in rem, so that the court, or its officer, has possession or must have control of the property which is the subject of the litigation in order to proceed with the cause and grant the relief sought he jurisdiction of the one court must yield to that of the other. We have said that the principle applicable to both federal and state courts that the court first assuming jurisdiction over property may maintain and exercise that jurisdiction to the exclusion of the other, is not restricted to cases where property has been actually seized under judicial process before a second suit is instituted, but applies as well where suits are brought to marshal assets, administer trusts, or liquidate estates, and in suits of a similar nature where, to give effect to its jurisdiction, the court must control the property. The doctrine is necessary to the harmonious cooperation of federal and state tribunals. * * *'
In re Craig's Estate, 379 Pa. 157, 109 A.2d 190 (November 8, 1954), a case involving a situation similar to the instant case, the Supreme Court in a per curiam opinion affirmed the lower court. That court held, in part, as follows, 109 A.2d 190, 198:
'From the moment that Harshaw was appointed executor of the Clyde Craig Estate, he had a statutory responsibility to account in this court for all assets in his possession. To permit an action which would require him to account in the second tribunal would almost of necessity produce an 'unseemly conflict' between the two courts which the rule of law set out in the Princess Lida Case and many others has been promulgated to prevent. It was long ago stated that 'a man cannot serve two masters'. The phrase is not inapplicable to this situation.'
This suit being in rem and the Orphans' Court of Centre County having for over two years had possession and control of the property which is the subject of this litigation, and the plaintiff having in that court available to her full and complete opportunity for the determination of the questions here posed, the jurisdiction of this Court must yield to that of the Orphans' Court of Centre County. To hold otherwise would subject the fiduciaries to conflicting directives and certainly tend toward the destruction of that desirable 'harmonious cooperation of federal and state tribunals.'
The motion to dismiss in the instant case was filed on behalf of George McClellan and Charles 'Ben' Haupt as executors and trustees of the estate of G. Edward Haupt, Deceased, and doing business as 'Ed Haupt Real Estate Fund.' The third executor and trustee, Lidah M. Haupt, died prior to the filing of the motion to dismiss. However, Lidah M. Haupt is also a party defendant individually under the original and amended complaints and there has been no substitution of the executor of her estate and there has been no motion to dismiss made on her behalf as an individual.
In view of the fact that the basis for dismissal is lack of jurisdiction and such lack of jurisdiction applies equally to the suit against Lidah M. Haupt individually, and since the Court may act on its own initiative where a lack of jurisdiction is apparent,
the order of dismissal will be made applicable to all parties defendant.
Motion to dismiss the complaint will be granted.