Appeal, No. 291, Jan. T., 1957, from decree of Orphans' Court of Philadelphia County, 1955, No. 1065, in re estate of John Webb, deceased. Decree affirmed, reargument refused February 14, 1958.
Edward Unterberger, for appellants.
Joseph B. Quinn, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
This case presents a very narrow issue: does in Orphans' Court have jurisdiction to compel realtors, who have been acting as agents of the administrators, to turn over to the administrators rents which they have collected from decedent's realty since decedent's death?
When John Webb, the decedent, died, intestate, on April 25, 1953, his estate was insolvent. The principal asset of the estate was an apartment house located at 3425-29 Powelton Avenue, Philadelphia, which was sold during the administration of the estate by order of the Orphans' Court.
During decedent's lifetime the appellants managed the apartment house and collected the rents as decedent's agents and they were continued in this capacity by the administrators. Since decedent's death appellants have collected rents totaling $4914.05, which they have refused to turn over to the administrators, claiming that the decedent owed their partnership $961.78 and that the decedent owed Morris Seidman, one of the co-partners, $4000, evidenced by an unrecorded judgment note; they they have applied the amount of rents collected to the payment of these obligations.
The administrators did not include the rent in their account; at the audit objection was made to this omission from the account and efforts were made to compel an accounting for the rent. The auditing judge
refused to compel an accounting upon the ground that the rents never came into the possession of the personal representative and were not registered in the name of the decedent or his nominee, hence the Orphans' Court had no jurisdiction. In a supplemental adjudication the auditing judge affirmed his prior ruling. Thereafter a unanimous court en banc, speaking through President Judge CHARLES KLEIN, while agreeing with the auditing judge's conclusion that the question was not properly before the court on audit because the rents were neither included in the account nor received by the administrators, nevertheless concluded that the Orphans' Court did have jurisdiction to compel the appellants to turn over the rents collected and directed the appellees to petition the court for a citation to issue to show cause why the rents should not be turned over to them.
The administrators then filed a petition for a citation which recited, inter alia, the ownership of the apartment house by decedent during his lifetime, that appellants were his agents for collection of rents and, subsequent to his death, "were continued in this capacity by the [Administrators of the Estate of John Webb, deceased]", that they have $4914.05 collected between the date of death and the sale of the property which, after demand, they have refused to turn over to the administrators. After issuance of the citation, preliminary objections were filed which squarely raised the ...