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DURST v. FRICK ET AL. (09/15/72)

decided: September 15, 1972.

DURST
v.
FRICK ET AL., APPELLANTS



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1970, No. 1491, in case of Catherine Durst v. John E. Frick et al.

COUNSEL

Andre L. Dennis, with him Stradley, Ronon, Stevens & Young, for appellants.

Harry A. Short, Jr., for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Jacobs, J.

Author: Jacobs

[ 222 Pa. Super. Page 292]

This appeal questions the jurisdiction of the Common Pleas Court, Trial Division, of Philadelphia over a suit in assumpsit against an inter vivos trust being administered by the Common Pleas Court, Orphans' Court Division, of Delaware County. The court below held that it had such jurisdiction. We reverse.

Orphans' courts were abolished and their jurisdiction transferred to the common pleas courts by article 5 of the Constitution of Pennsylvania and its implementing Schedule, effective January 1, 1969. Pa. Const. art. 5, § 1 et seq. Section 4 of the Schedule provides that in judicial districts having separate orphans' courts the courts of common pleas shall "exercise the jurisdiction presently exercised by the separate orphans' courts through their respective orphans' court divisions." Pa. Const. art. 5, § 4. Both Philadelphia and Delaware County are judicial districts which had separate orphans' courts, and we interpret § 4 of the Schedule as preserving, in the present common pleas courts and orphans' court divisions of those districts, the same jurisdictional distinctions as previously existed between the common pleas courts and the separate orphans' courts.

On May 1, 1959, the appellee entered into an antenuptial agreement with William J. Durst, Sr., under which in the event of his death appellee would receive one-fifth of his estate. The parties were married later that month. On December 13, 1967, Durst created an inter vivos deed of trust, transferring the bulk of his property to the appellants as trustees. In the deed of trust he provided, inter alia, that on his death his trustees would distribute to the appellee two-tenths of the remainder of his estate which he described as being the amount stipulated in the antenuptial agreement. On the same date Durst made a will by which he left his

[ 222 Pa. Super. Page 293]

    entire estate, after payment of debts and funeral expenses, to the trustees of the inter vivos trust.

Durst died January 6, 1968, a resident of New Jersey.*fn1 The inter vivos trust agreement provided that it should be construed and administered under the laws of Pennsylvania. One of the trustees being a resident of Delaware County, an accounting of the trust was filed in the Orphans' Court of Delaware County in accordance with § 308 of the Orphans' Court Act of 1951, 20 P.S. § 2080.308, fixing the situs of inter vivos trusts. The account was called for audit on May 5, 1969. Notice of the audit was given to appellee and her attorney, and the attorney was present at the audit. An adjudication was filed June 10, 1969, making an award to appellee; appellee took no exception.

Apparently dissatisfied with the amount awarded her by the audit, appellee, on October 13, 1970, filed this assumpsit action in Philadelphia. The suit is grounded on the antenuptial agreement. Although the appellants are named as individuals in the suit, no personal liability is alleged and it is apparent from the complaint that they are being sued as trustees of the inter vivos trust. The complaint alleges that under the agreement appellee is entitled to one-fifth of her husband's estate; that the entire estate of Durst is in the hands of the defendant-trustees; that the estate at Durst's death totaled $571,536.00; that she is entitled to one-fifth of that amount or $114,307.20; that the trustees have paid her $70,000.00; and she asks judgment for the balance of $44,307.20.

Appellants filed preliminary objections to the complaint in Philadelphia, raising a question of jurisdiction. They claim that the suit involves the administration ...


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