Dorsey, J.,
delivered the opinion of this court.
All objections to vouchers Nos. 1, 8, 9,13, 18, and 32, for which credits were allowed Marein T. Lamar, administrator cum testamento annexo of James Lamar, in his account settled with the orphans court of Prince George’s county, on the twenty-fifth of April, in the year 1843, being waived and withdrawn, this court are only called upon therefore to decide whether the objections taken to vouchers Nos. 4, 10, 39, and 40, were properly overruled by the orphans court. Of all these vouchers or claims the appellee was called upon by the appellants to offer full proof, and to the voucher No. 4 the plea of limitations is interposed as a bar.
In this attitude of the case the first question presented for our determination is, have the appellants the right of prefering such a plea, before the orphans court, in bar of the appellees claim ?
To support the affirmative of this proposition we have been referred to the case of Shrewen vs. Vanderhorst, 1 Russ. & Mylne, 347, where after a decree to account, on a bill filed by a residuary legatee against an executor, upon a creditor’s filing [362]*362a claim, the Lord Chancellor decided that it was competent for the complainant (the residuary legatee) to plead the statute of limitations. In delivering his opinion he states that “the ques-. tion here is, whether, when a decree has been pronounced, taking possession of the estate, and vesting it in the court for the purpose of distribution, a decree by which the accounts are directed to be taken, and the assets are to be administered in the masters office, and after which the common law must be altogether silent,” the plea must not be considered fatal ? And in the same case, in 2 Russ. & Mylne, 75, the Master of the Rolls, who allowed the residuary legatee to plead the statute of limitations to the creditors claim, “stated the ground of his decision to be, that after a decree the executor was not at liberty to do any act which affected the relative rights of creditors.” The same reasons do not exist for receiving such a plea, from such a source, in proceedings before the orphans court. No decree or order which the orphans court might pass, in the premises, would divest the courts of law of jurisdiction over the same subject matter, nor would it thence follow that the common law must thereafter “be altogether silent;” or, in the language of the Master of the Rolls, would the executor be deprived of the “liberty to do any act, which affected the relative rights of creditors.” The grounds upon which the case of Shrewen vs. Vanderhorst was decided, being wholly inapplicable to proceedings before the orphans court, can have no influence upon the opinion of this court in the case now before it. Does the fact of the executor being the creditor, claimant, change the nature of the case ? We think- it does not. If the appellants can, in their suit at law now pending, in any way, defeat the appellees claim by a plea of limitations, no decision which the orphans court could have made in the case before it could destroy or impair their power of doing so. We do not therefore regard the plea of limitations (technically considered as such) applicable to proceedings before the orphans court, in relation to the claims of creditors. That tribunal may, it is true, look to the fact of such a bar as evidence to be weighed with all other testimony in relation to any claim, in deter[363]*363mining on its justice and the propriety of passing or rejecting it; but as a technical statutory bar, no legatee or creditor has in the orphans court authority to interpose it against a creditor’s claim, that power, by our testamentary system, being vested in executors and administrators. In what we have said we desire it to be understood that we have intimated no opinion that, in any proceeding at law by a legatee, distributee, or creditor, it is competent for them to defeat the claims of creditors of the deceased by the plea of limitations.
Voucher or claim No. 4, it would appear from the endorsement upon it, had been passed by the orphans court anterior to the objection filed by the appellants to its allowance in the administration account then about to be settled by the appellee before that court. The appeal in this case being taken to the decree and order overruling the objections in the appellants petition, and allowing and passing the administration account of the appellee, and not to the order of passage, endorsed on voucher No. 4, it is insisted by the appellee that, independently of the proof offered for its establishment and inserted in the record, the order of passage endorsed upon it is prima facie evidence of its correctness, and in the absence of all proof to the contrary, fully warranted the decree and order of the orphans court as far as that voucher is concerned. The position thus insisted on is directly in conflict wdth the decision of this court in the case of Lee vs. Lee and Welsh, 6 G. & J. 316, where the orphans court were called on by the petition of the person interested as residuary legatee to re-examine and adjudicate anew upon a claim, of one of two executors, against the deceased, which had been passed by the court, but remained unpaid. Upon such a review this court say that the passage of the claim “adds nothing to its intrinsic merits or authenticity, when reviewed, as it was by the orphans court, upon the proceedings before it.” That “the claim having been contested before payment, its passage by the orphans court is no evidence of its correctness. It must be supported by testimony substantially sufficient for its establishment before a jury.” The case now before us has been brought up on proceedings in no [364]*364wise distinguishable from those in the ease of Lee vs. Lee and Welsh, and can by no ingenuity be withdrawn from the operation of the principles there established.
But it has been asserted by one of the counsel for the appellee that the case of Lee vs. Lee and, Welsh is in obvious conflict with the case of Stevenson and al. vs. Shriver and wife, 9 Gill & John. 324, and is overruled by it. After a careful perusal of both the cases we can discover nothing by which this assertion can be sustained. That part of the court’s opinion, in the latter case, in which it is alleged this inconsistency appears, is where the court, in discussing the question, whether, where the estate is insufficient for the payment of debts, a creditor has a right to appeal from an order of the orphans court passing a claim of an executor or administrator, says: “Conceding, as is alleged, that the passage of the claim of an executor or administrator, is not conclusive upon a distributee or creditor suing such executor or administrator, and leaves him at liberty to shew the illegality of the allowance thus made; yet it so increases the difficulty of so doing that such an order cannot be said not to impair the rights of a distributee or of a creditor, where the assets of the deceased are inadequate to the payment of debts. The allowance of the claim is prima facie evidence of its correctness, and the executor or administrator need offer no further evidence to sustain it. The onus probandi
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Dorsey, J.,
delivered the opinion of this court.
All objections to vouchers Nos. 1, 8, 9,13, 18, and 32, for which credits were allowed Marein T. Lamar, administrator cum testamento annexo of James Lamar, in his account settled with the orphans court of Prince George’s county, on the twenty-fifth of April, in the year 1843, being waived and withdrawn, this court are only called upon therefore to decide whether the objections taken to vouchers Nos. 4, 10, 39, and 40, were properly overruled by the orphans court. Of all these vouchers or claims the appellee was called upon by the appellants to offer full proof, and to the voucher No. 4 the plea of limitations is interposed as a bar.
In this attitude of the case the first question presented for our determination is, have the appellants the right of prefering such a plea, before the orphans court, in bar of the appellees claim ?
To support the affirmative of this proposition we have been referred to the case of Shrewen vs. Vanderhorst, 1 Russ. & Mylne, 347, where after a decree to account, on a bill filed by a residuary legatee against an executor, upon a creditor’s filing [362]*362a claim, the Lord Chancellor decided that it was competent for the complainant (the residuary legatee) to plead the statute of limitations. In delivering his opinion he states that “the ques-. tion here is, whether, when a decree has been pronounced, taking possession of the estate, and vesting it in the court for the purpose of distribution, a decree by which the accounts are directed to be taken, and the assets are to be administered in the masters office, and after which the common law must be altogether silent,” the plea must not be considered fatal ? And in the same case, in 2 Russ. & Mylne, 75, the Master of the Rolls, who allowed the residuary legatee to plead the statute of limitations to the creditors claim, “stated the ground of his decision to be, that after a decree the executor was not at liberty to do any act which affected the relative rights of creditors.” The same reasons do not exist for receiving such a plea, from such a source, in proceedings before the orphans court. No decree or order which the orphans court might pass, in the premises, would divest the courts of law of jurisdiction over the same subject matter, nor would it thence follow that the common law must thereafter “be altogether silent;” or, in the language of the Master of the Rolls, would the executor be deprived of the “liberty to do any act, which affected the relative rights of creditors.” The grounds upon which the case of Shrewen vs. Vanderhorst was decided, being wholly inapplicable to proceedings before the orphans court, can have no influence upon the opinion of this court in the case now before it. Does the fact of the executor being the creditor, claimant, change the nature of the case ? We think- it does not. If the appellants can, in their suit at law now pending, in any way, defeat the appellees claim by a plea of limitations, no decision which the orphans court could have made in the case before it could destroy or impair their power of doing so. We do not therefore regard the plea of limitations (technically considered as such) applicable to proceedings before the orphans court, in relation to the claims of creditors. That tribunal may, it is true, look to the fact of such a bar as evidence to be weighed with all other testimony in relation to any claim, in deter[363]*363mining on its justice and the propriety of passing or rejecting it; but as a technical statutory bar, no legatee or creditor has in the orphans court authority to interpose it against a creditor’s claim, that power, by our testamentary system, being vested in executors and administrators. In what we have said we desire it to be understood that we have intimated no opinion that, in any proceeding at law by a legatee, distributee, or creditor, it is competent for them to defeat the claims of creditors of the deceased by the plea of limitations.
Voucher or claim No. 4, it would appear from the endorsement upon it, had been passed by the orphans court anterior to the objection filed by the appellants to its allowance in the administration account then about to be settled by the appellee before that court. The appeal in this case being taken to the decree and order overruling the objections in the appellants petition, and allowing and passing the administration account of the appellee, and not to the order of passage, endorsed on voucher No. 4, it is insisted by the appellee that, independently of the proof offered for its establishment and inserted in the record, the order of passage endorsed upon it is prima facie evidence of its correctness, and in the absence of all proof to the contrary, fully warranted the decree and order of the orphans court as far as that voucher is concerned. The position thus insisted on is directly in conflict wdth the decision of this court in the case of Lee vs. Lee and Welsh, 6 G. & J. 316, where the orphans court were called on by the petition of the person interested as residuary legatee to re-examine and adjudicate anew upon a claim, of one of two executors, against the deceased, which had been passed by the court, but remained unpaid. Upon such a review this court say that the passage of the claim “adds nothing to its intrinsic merits or authenticity, when reviewed, as it was by the orphans court, upon the proceedings before it.” That “the claim having been contested before payment, its passage by the orphans court is no evidence of its correctness. It must be supported by testimony substantially sufficient for its establishment before a jury.” The case now before us has been brought up on proceedings in no [364]*364wise distinguishable from those in the ease of Lee vs. Lee and Welsh, and can by no ingenuity be withdrawn from the operation of the principles there established.
But it has been asserted by one of the counsel for the appellee that the case of Lee vs. Lee and, Welsh is in obvious conflict with the case of Stevenson and al. vs. Shriver and wife, 9 Gill & John. 324, and is overruled by it. After a careful perusal of both the cases we can discover nothing by which this assertion can be sustained. That part of the court’s opinion, in the latter case, in which it is alleged this inconsistency appears, is where the court, in discussing the question, whether, where the estate is insufficient for the payment of debts, a creditor has a right to appeal from an order of the orphans court passing a claim of an executor or administrator, says: “Conceding, as is alleged, that the passage of the claim of an executor or administrator, is not conclusive upon a distributee or creditor suing such executor or administrator, and leaves him at liberty to shew the illegality of the allowance thus made; yet it so increases the difficulty of so doing that such an order cannot be said not to impair the rights of a distributee or of a creditor, where the assets of the deceased are inadequate to the payment of debts. The allowance of the claim is prima facie evidence of its correctness, and the executor or administrator need offer no further evidence to sustain it. The onus probandi is shifted from the executor or administrator to the creditor.” These remarks of the court, in the latter case, are perfectly consistent with its decision in the former, referring to a proceeding in a different tribunal, where the question would be, not whether the orphans court acted correctly in passing the claim, but whether the claim, according to the proofs in the cause, ought to be sustained or enforced in a court of justice? The order of the orphans court would be offered but as prima facie evidence; as such it is the decision of a court of competent jurisdiction, and must be respected accordingly. It forms no part of the issue in the cause, but coming collaterally in question to the extent to which it is an adjudication, it must be recognised. In the case of Lee vs. Lee [365]*365and Welsh, the very question in issue was, whether the orphans court ought to pass the claim. It was taken up by the orphans .court de novo, and consequently its judgment should have been formed upon the evidence adduced by the parties litigant, and not upon any opinion it may have theretofore formed or expressed upon the ex parte testimony formerly before it. And in accordance with these views, and not in conflict with the case of Lee vs. Lee and Welsh, was the case of Stockett’s executor vs. Jones and wife, decided in 10 Gill & Johnson, 276.
Does the record present evidence sufficient, in point of fact, to establish the charges in voucher No. 4, and warrant the orphans court in overruling the objection made to their allowance, is our next inquiry? To the admissibility of the testimony offered for this purpose no exception has been taken. That being the case, we think it does satisfactorily establish the first, second, third, fourth, seventh and eighth items of charge in voucher No. 4. But in support of the fifth and sixth charges in that voucher, as appears by the record, no proof having been offered, the orphans court erred in allowing them.
The orphans court also erred in allowing voucher No. 10, the appellee having wholly failed to offer the requisite proof to sustain it. It is true he has exhibited an account, with a receipt upon it, purporting to have been given by or on account of the sheriff of Prince George’s county, for the apprehension fee and jail fees of negro Hanson, a slave of Gustavus Lamar, with a portion of whose estate, as the administrator thereof, James Lamar has been charged by the appellants. But no proof has been offered of the execution of the receipt, or that negro Hanson had ever runaway or been confined in jail as a runaway.
The orphans court were in error, also, in allowing voucher No. 39, purporting to be an open account of C. C. Hyatt, against the “estate of James Lamar,” commencing in June, 1838, and terminating in December 1840, with a certificate of C. C. Hyatt that it had been settled by Marein T. Lamar. Of this claim there is not to be found in the record one particle of evidence to show that a single article in the account was ever [366]*366sold or delivered to any body. Nor is there any inventory or other proof of the personal property of James Lamar, from which this court might form even a conjecture that the articles charged were supplies necessarily provided by the administer, in a due course of administration, for the sustenance, comfort or preservation of the estate confided to his charge.
The total absence of all evidence as to the nature and circumstances of the personal estate of the deceased; or that the articles consumed, for which the credit is claimed, formed any part of it; or what was the property appraised in the inventory which did not belong to him; or to whom it did belong, should have induced the orphans court to disallow voucher No. 40. Without such proof it is impossible for this court to say that the allowance claimed ought to have been made. In sanctioning such an allowance the orphans court were therefore in error. But is said that no such proof is necessary, because the articles for which a credit is claimed in this voucher being of such a nature as that they must have been consumed in their use by the legatee during her single life, and were therefore her absolute property, the appellants have no right to complain of the allowance which has been made for them. Whether they have a right to complain, or not, this court will not venture to determine, unless the entire will of the testator, James Lamar, be before it. In Evans and al. vs. Iglehart and al., 6 Gill & Johnson, 174, this court have said, in determining on the rights of a residuary legatee for life with a bequest over to others, that whether the legatee for life ‘‘ought to enjoy his (the testator’s) personal estate specifically, or to receive nothing more than the interest on its value, is purely a question as to the intention of the testator, in conformity to which his will must be executed, there being no unbending principle of law to control such intention, whether it be in the one way or the other.” To pronounce what, in this respect, was the intention of James Lamar, the testator, upon a record which does not contain his will, cannot be expected of the court. But even if the will vrere to be found in the record, and our construction of it be what it may, it could [367]*367throw no light upon the question, nor enable us to determine on the propriety of the allowance made to the appellee for property appraised in the inventory which was no part of the personal estate of the testator.
We are prepared to ratify and affirm the decree and order of the orphans court,, allowing and passing the administration account of the appellee, except the allowances in said account numbered 10, 39 and 40, and the sum of 'five hundred and thirty-seven dollars and eighty-six cents, being part of allowance number four in said account,, and consisting, of the fifth and sixth items of charge in voucher No. 4, as to which said excepted allowances and items the said decree and order of the orphans court is hereby reversed, hut without prejudice to the rights of the parties in relation thereto. And this cause is to be remanded to the orphans court of Prince George's county, that such further proceedings may be had therein as may be necessary to carry into effect the decree of affirmance in this court; and that it may take such further evidence in relation to said excepted allowances and items as the parties may see fit to offer; and that the said court may finally order and decree thereon as the nature of the ease may require. As to all costs heretofore incurred in this coart, and in the said orphans court,, each party shall pay its own costs.
DECREE REVERSED IN PART., AND CAUSE REMANDED.