Appeal, No. 213, Oct. T., 1963, from decree of Court of Common Pleas of Delaware County, March T., 1962, No. 1491, in equity, in case of John William Hughes v. John William Bailey, executor of estate of Mary Frances James, deceased. Decree affirmed; reargument refused December 5, 1963.
Paul C. Van Dyke, with him James A. Cochrane, and Cochrane & Van Dyke, for appellant.
Robert J. Scallan, with him Smith & Scallan, for appellee.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 202 Pa. Super. Page 266]
Plaintiff sued the defendant as executor under the will of Mary Frances James who was the record owner of 430 Penn Street, Chester, Pennsylvania, at the time of her death. The complaint avers that the plaintiff purchased the property with his own funds but title was placed in Mrs. James' name for business reasons; that he and Mrs. James lived together at that time as husband and wife and continued to do so until her death; that he resided in the property from the date of purchase and believed that legal title would pass to him on her death; that after her death he made demand upon the defendant executor to have the latter convey the property but this was refused. After hearing, the court below filed an adjudication and decree nisi declaring that a resulting trust of an undivided one-half interest in the property existed in the plaintiff's favor and ordering the executor to execute and deliver to the plaintiff a deed in fee simple for the property, conditional upon payment of a sum equal to one-half the fair market value of the property. This appeal is taken from a final decree dismissing all of the defendant's exceptions to the adjudication and decree nisi.
1. The executor contends that the court of common pleas has no jurisdiction over a resulting trust of real estate in the name of a decedent. He argues that the court below, which relied upon § 302 of the Orphans' Court Act of August 10, 1951, P.L. 1163, 20 PS § 2080.302, misinterpreted that section. While § 302 gives concurrent jurisdiction to the common pleas court and the orphans' court in certain cases, the defendant correctly points out that it does not extend to resulting trusts of real estate. It gives concurrent jurisdiction to the two courts only in certain cases where
[ 202 Pa. Super. Page 267]
real estate "has passed by devise or descent or by the terms of [a] trust instrument". It has no relations to resulting trusts which are created by operation of law.
The jurisdiction of the orphans' court is, however, limited to that conferred upon it by statute (Horner v. First Pennsylvania Banking and Trust Co., 412 Pa. 72, 194 A.2d 335 (1963)) and the Orphans' Court Act of 1951, supra, which delineates that court's jurisdiction, nowhere gives it any power with regard to purchase money resulting trusts of real estate.See particularly, § 102(6)(vi) of that Act, 20 P S § 2080.102. This matter was fully discussed by the able and experienced President Judge GROSS of the Orphans' Court of York County in Kain Account, 6 Pa. D. & C.2d 475, at p. 481 et seq. (1955) and we need not burden this opinion by paraphrasing what he said so well in that opinion. Consequently, the court of common pleas as court of equity retains its historic jurisdiction over resulting trusts of real estate.
2. The defendant next contends that the overruling of his objection to the plaintiff's testimony was in violation of the so-called Dead Man's Act of May 23, 1887, P.L. 158, § 5, 28 PS § 322. At the hearing on the rule for a preliminary injunction, the plaintiff testified, without objection, that his money was used to make the down payment on the property and make some of the mortgage payments, and he was fully cross-examined by the defendant's counsel. When the transcript of this testimony was offered in evidence at the final hearing, the defendant objected to its admission. The court held that he had waived his right by failing to object to its admission at the preliminary hearing. This was not error. "[Where], as here, a witness has been examined ...