The opinion of the Court, delivered by
Hornblower, C. J.
The return to this writ presents to us, the case of an administrator, who had fifty-four dollars and sixty-four cents of assets in his hands; who has never paid, nor been called upon to pay, one dollar of debt due from his intestate: and yet, obtained an order of the Orphans’ Court to sell his intestate’s lands, for the payment of debts: and who, after having sold lands to the amount of eleven hundred and twenty-two dollars and fifty-three cents, had only five hundred and forty-five dollars and ninety cents left in his hands, to be distributed among the next of kin. And a case too, in which the Orphans’ Court allowed an administrator’s account, although out of forty-[84]*84four vouchers presented by him,( not one of them was for a debt due by the intestate, and only two or three of them, (which were for court’s and surrogate’s fees,) proper charges against the estate.
The facts are as follows: John G. Leake, the intestate, died in the city of New York on the 2d of June, 1827, leaving real and personal property in the county of Bergen, in this state. On the 18th of the same month, Engle obtained the administration of his estate.
On the 21st of February, 1829, the legislature passed an act, making Engle trustee of Leake’s real estate, with power to sue, in the name of the state, for any trespasses committed upon it: and expressly charging the land with the expenses of executing the trust: the payment of taxes, and other reasonable expenses.
On the 15th June, 1835, the administrator exhibited his account for settlement: it was audited by the surrogate, and allowed and passed by the court, resulting in the manner I have already stated.
In that account the administrator does npt charge himself by inventory; but, “ with amount of money realized from the sales of certain personal estate of the deceased, fifty-four dollars and sixty-four cents.” He then claims and receives allowance for various payments as per vouchers, amounting with interest upon them, to something more than five hundred dollars. As I have said before, not one of those payments was for a debt due from the intestate; and only two or three of them, which were for court’s and surrogate’s fees, that were proper charges against the personal estate. They were for sundry counsel fees, and bills of cost paid by him in suits he had unsuccessfully brought in his own name, for trespasses on the land, for taxes on the real estate, for surveying and mapping the land, for chain bearers, for messengers, for witnesses, for entertainment at taverns, at Trenton and other places for himself and others, for travelling expenses, and several.of them for “services rendered the Lake estate,” and other charges equally objectionable.
In January term, 1835, the administrator had obtained an order of the Orphans’ Court, upon an alleged and sworn deficiency of personal assets, to pay the debts, “ and expenses(when in fact there was not a debt to be paid,) and afterwards, in June [85]*85term, settled his account as above stated, in which he got an allowance of one hundred and seventeen dollars for commissions.
Thus matters stood until March term, 1838, when the letters of administration to Engle were revoked by the Orphans’ Court, and new letters granted to the plaintiff in Certiorari. At the same term, a rule was granted calling on Engle to show cause, why the order for the sale of real estate, should not be set aside, on the ground of fraud and mistake in the obtaining and making the same: and also another rule on him to show cause why the decree allowing his account, should not be set aside, and the account be opened and re-settled on the ground of fraud and mistake therein. At a subsequent term of the court, the argument of these rales came on, and after reading the depositions and vouchers, which are now before this court, and hearing the arguments of counsel, the Orphans’ Court by separate judgments or decrees, discharged the rules to show cause, and ordered, that Crombie, (the plaintiff* in Certiorari,) should pay the costs to be taxed. Thereupon this Certiorari was sued out: and in obedience to its commands, the Orphans’ Court have certified to us, the account and the vouchers on which it was stated, together with the depositions, and their final order or decrees made by them, on the said rules to show cause.
I. It is objected, that the Certiorari is multifarious j that it brings up two distinct orders or decrees of the Orphans’ Court; one relating to the sale of lands, and the other to a re-statement of the final account.
If these matters are proper to be reviewed here, I see no objection to bringing them before us upon one writ. They are but different parts of one proceeding, and may receive similar or different decisions.
As to the decree for a sale, in my opinion, the present administrator had no right to seek its reversal: it was a matter in which, as administrator he had no interest. If the court made that decree unduly or without legal authority, it affects only the heir at law, and he alone has a right to complain.
II. It is objected, that the Orphans’ Court had no power to set aside the decree for sale, or the final account; but only to open and re-state the latter, upon fraud or mistake being proved to the satisfaction of the court.
[86]*86As to the decree for sale, after it had been executed, I am of opinion, the Orphans’ Court had no power to vacate or set it aside; and if they had done so, it conld not have affected the rights of bona fide purchasers under the decree. But as to the final account, the court had power, if not to vacate and set it all aside, at least to open and re-state it, so as to correct it in all such particulars, in which it should be proved, by legal evidence, to be fraudulent or erroneous.
III. That Engle’s letters of administration have not been revoked j and if they have been, there is no evidence of it here.
By the thirty-fourth section of the act, Elm. Dig. 368, the Orphans’ Court have power, in certain cases, to revoke letters of administration and to issue new ones. They-have granted letters to Crombie; he comes into court with them, and the Orphans’ Court have dealt with him as administrator,.and with Engle, as late administrator. It so appears by their return to this writ; and I think we cannot, in this indirect way, decide whether the Orphans’ Court have done right or wrong, in revoking the letters granted to Engle, and issuing new ones to Crombie.
TV. If Engle has ceased to be administrator, the Orphans’ Court have no longer any control over him; he cannot be cited or dealt with as administrator.
This objection is based upon a false assumption. Calling upon him to show cause why the.account which he exhibited as a just and true one, should not be set aside for fraud and mistake, is not citing him to account; nor dealing with him as administrator. He is called upon, as John Engle, not by citation, but by a rule of court in the nature of a notice, to show cause, if he thinks proper to do so, why the account which he rendered as a final one, and which the Orphans’ Court had allowed, should not be opened and corrected.
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The opinion of the Court, delivered by
Hornblower, C. J.
The return to this writ presents to us, the case of an administrator, who had fifty-four dollars and sixty-four cents of assets in his hands; who has never paid, nor been called upon to pay, one dollar of debt due from his intestate: and yet, obtained an order of the Orphans’ Court to sell his intestate’s lands, for the payment of debts: and who, after having sold lands to the amount of eleven hundred and twenty-two dollars and fifty-three cents, had only five hundred and forty-five dollars and ninety cents left in his hands, to be distributed among the next of kin. And a case too, in which the Orphans’ Court allowed an administrator’s account, although out of forty-[84]*84four vouchers presented by him,( not one of them was for a debt due by the intestate, and only two or three of them, (which were for court’s and surrogate’s fees,) proper charges against the estate.
The facts are as follows: John G. Leake, the intestate, died in the city of New York on the 2d of June, 1827, leaving real and personal property in the county of Bergen, in this state. On the 18th of the same month, Engle obtained the administration of his estate.
On the 21st of February, 1829, the legislature passed an act, making Engle trustee of Leake’s real estate, with power to sue, in the name of the state, for any trespasses committed upon it: and expressly charging the land with the expenses of executing the trust: the payment of taxes, and other reasonable expenses.
On the 15th June, 1835, the administrator exhibited his account for settlement: it was audited by the surrogate, and allowed and passed by the court, resulting in the manner I have already stated.
In that account the administrator does npt charge himself by inventory; but, “ with amount of money realized from the sales of certain personal estate of the deceased, fifty-four dollars and sixty-four cents.” He then claims and receives allowance for various payments as per vouchers, amounting with interest upon them, to something more than five hundred dollars. As I have said before, not one of those payments was for a debt due from the intestate; and only two or three of them, which were for court’s and surrogate’s fees, that were proper charges against the personal estate. They were for sundry counsel fees, and bills of cost paid by him in suits he had unsuccessfully brought in his own name, for trespasses on the land, for taxes on the real estate, for surveying and mapping the land, for chain bearers, for messengers, for witnesses, for entertainment at taverns, at Trenton and other places for himself and others, for travelling expenses, and several.of them for “services rendered the Lake estate,” and other charges equally objectionable.
In January term, 1835, the administrator had obtained an order of the Orphans’ Court, upon an alleged and sworn deficiency of personal assets, to pay the debts, “ and expenses(when in fact there was not a debt to be paid,) and afterwards, in June [85]*85term, settled his account as above stated, in which he got an allowance of one hundred and seventeen dollars for commissions.
Thus matters stood until March term, 1838, when the letters of administration to Engle were revoked by the Orphans’ Court, and new letters granted to the plaintiff in Certiorari. At the same term, a rule was granted calling on Engle to show cause, why the order for the sale of real estate, should not be set aside, on the ground of fraud and mistake in the obtaining and making the same: and also another rule on him to show cause why the decree allowing his account, should not be set aside, and the account be opened and re-settled on the ground of fraud and mistake therein. At a subsequent term of the court, the argument of these rales came on, and after reading the depositions and vouchers, which are now before this court, and hearing the arguments of counsel, the Orphans’ Court by separate judgments or decrees, discharged the rules to show cause, and ordered, that Crombie, (the plaintiff* in Certiorari,) should pay the costs to be taxed. Thereupon this Certiorari was sued out: and in obedience to its commands, the Orphans’ Court have certified to us, the account and the vouchers on which it was stated, together with the depositions, and their final order or decrees made by them, on the said rules to show cause.
I. It is objected, that the Certiorari is multifarious j that it brings up two distinct orders or decrees of the Orphans’ Court; one relating to the sale of lands, and the other to a re-statement of the final account.
If these matters are proper to be reviewed here, I see no objection to bringing them before us upon one writ. They are but different parts of one proceeding, and may receive similar or different decisions.
As to the decree for a sale, in my opinion, the present administrator had no right to seek its reversal: it was a matter in which, as administrator he had no interest. If the court made that decree unduly or without legal authority, it affects only the heir at law, and he alone has a right to complain.
II. It is objected, that the Orphans’ Court had no power to set aside the decree for sale, or the final account; but only to open and re-state the latter, upon fraud or mistake being proved to the satisfaction of the court.
[86]*86As to the decree for sale, after it had been executed, I am of opinion, the Orphans’ Court had no power to vacate or set it aside; and if they had done so, it conld not have affected the rights of bona fide purchasers under the decree. But as to the final account, the court had power, if not to vacate and set it all aside, at least to open and re-state it, so as to correct it in all such particulars, in which it should be proved, by legal evidence, to be fraudulent or erroneous.
III. That Engle’s letters of administration have not been revoked j and if they have been, there is no evidence of it here.
By the thirty-fourth section of the act, Elm. Dig. 368, the Orphans’ Court have power, in certain cases, to revoke letters of administration and to issue new ones. They-have granted letters to Crombie; he comes into court with them, and the Orphans’ Court have dealt with him as administrator,.and with Engle, as late administrator. It so appears by their return to this writ; and I think we cannot, in this indirect way, decide whether the Orphans’ Court have done right or wrong, in revoking the letters granted to Engle, and issuing new ones to Crombie.
TV. If Engle has ceased to be administrator, the Orphans’ Court have no longer any control over him; he cannot be cited or dealt with as administrator.
This objection is based upon a false assumption. Calling upon him to show cause why the.account which he exhibited as a just and true one, should not be set aside for fraud and mistake, is not citing him to account; nor dealing with him as administrator. He is called upon, as John Engle, not by citation, but by a rule of court in the nature of a notice, to show cause, if he thinks proper to do so, why the account which he rendered as a final one, and which the Orphans’ Court had allowed, should not be opened and corrected.
The object of this proceeding on the part of Crombie, was to get rid of the final decree of the Orphans’ Court, allowing and confirming that false and fraudulent account; which, so long as it remained, stood in his way, and concluded his rights as against Engle. It is not pretended, that Engle was bound to attend, or that the Orphans’ Court could have proceeded against him for a contempt, if he did not choose to attend and show cause.
It is true, as stated by counsel, if an executor or administra[87]*87tor die, his executor or administrator cannot be cited to account for assets that came to the hands of the first executor or administrator. In such case the only remedy is in a court of Equity.
But this is a very different thing. Suppose an executor or administrator should exhibit his final account and get it decreed and allowed in the Orphans’ Court and then die; and it should afterwards be discovered to be grossly fraudulent or erroneous? Is there no remedy ? Has the fraudulent executor or administrator, by his death, sealed up the fraud, so that it can never be reached ? The statute says, Sec. 32 Elm. Dig. 365, that “ the sentence or decree of the Orphans’ Court,” allowing the account, “ shall be conclusive upon all parties, and shall exonerate and forever discharge the executor <fec. from all demands beyond the amount &c.” except as to future “ assets, and when fraud or mistake can be shown to the satisfaction of the Orphans’ Court.” But if the executor is dead, and if his executor or administrator cannot be called upon to show cause why the account should not be opened for fraud or mistake, why then, the death of the executor has rivetted the fraud or mistake, however great or palpable, on the parties interested.
Again, by the first section of the supplement, Elm. Dig. 368, if an administrator refuses to give security for the balance found to be in his hands, the Orphans’ Court may revoke his letters and issue new ones to another person. Now suppose such newly appointed administrator, after it is too late to bring a Certiorari, discovers fraud and mistake in the settlement of his predecessor’s final account, is there no way of correcting it? I know of none, except by application to the Orphans’ Court to set aside their decree, and open the account; and this can only be done upon notice to the former administrator; or in case of his death, to his representatives, to show cause why it should not be done. But this is not dealing with him as administrator; it is not citing him to account: it is simply giving him an opportunity to be present and be heard, upon an application to correct the account for alleged fraud or mistake.
Y. The last objection is, that no Certiorari will lie in this case, because the application to the Orphans’ Court, was an application to their discretion, and this court cannot review their discretion : that fraud or mistake must be proved “ to the satisfac[88]*88tion of the Orphans’ Courtand that this court cannot review or control the conscience of the Orphans’ Court, and proceed against them for a contempt if they will not be satisfied.
This is putting the argument in a very plausible shape; but in my opinion, it is unsound. The error lies in supposing the application to be to the discretion of the Orphans’ Court; and that whether they will grant or refuse it, must depend upon the question, whether they are satisfied or not. On the contrary, I think the application, is ex debito justitice, and if sustained by sufficient and legal proof, the Orphans’ Court are bound to be satisfied with it.
When the statute says, the account shall be conclusive, “ except where fraud or mistake can be shown,” I understand it as k positive enactment, that it shall not be conclusive, where fraud or mistake can be shown by due and legal proof: and not, that it shall then be in the mere discretion of the court to say, whether such fraud or mistake shall be rectified or not.
If upon reviewing the evidence of fraud or mistake, we find that the evidence was legal, and clearly sufficient to establish the one or the other; we must intend, not that the court below refused to be satisfied with legal and sufficient evidence; but, that they erred in supposing the evidence to be illegal and insufficient or that what was insisted on as fraudulent, or an error in the account, was not so in law.
Suppose for instance the mistake sought to be rectified, consisted in a palpable mis-addition or subtraction of figures, and the Orphans’ Court should refuse to correct it; is the party to be without remedy ? It may be said, this is putting an extreme case and one that is not likely to occur : but it would not, in my opinion, be a more extreme case than the one that has happened. It is quite as likely, one would think, that a court should be unable to make a right addition of figures, as that they should, not only allow items, which upon the very face of them, have no connection with the matter of administration ; but should confirm an account showing a balance of more than five hundred dollars due to an administrator who had fifty-four dollars to begin with, and not a debt to pay.
But this very question has been fully and in my opinion, rightly settled by this court, in the case of Johnson, surviving Exr. [89]*89&c. v. Eicke et al., 7 Halst. 316. In that case, as in this, it was insisted,’ that error would not lie, because it was the exercise of a mere discretionary power in the Orphan’s Court. But the court say, the statute “ does not confer a general discretion on the subject, but limits it to cases where the party applying, shall prove some fraud or mistake therein.” The court then go on to remark, that the words, “ to the satisfaction of the Orphans’ Court,” ought not to be construed, as vesting “ an unlimited discretion ” in the court, to act as they please. To that remark I will only add, that the words, “ to the satisfaction of the court,” are in fact superfluous and unmeaning; or rather that they mean nothing more than would have been implied and understood, if they had been omitted.
"When a statute says, a court shall do a certain thing, “ upon proof being made,” it means sufficient proof; such as satisfies the court, of the existence of the fact alleged.
Suppose then the statute had said, “ the court shall open the account, whenever the party applying, shall prove fraud or mistake therein,” would it be pretended that the Orphans’ Court were to be the sole and exclusive judges of what amounted to such proof; and that their decision could not be reviewed in this court ? I think not.
The only difference between that case, 7 Halst. 316, and the one now before us is, that in the former, the Orphans’ Court were satisfied, when they ought not to have been ; and in this case, they were not satisfied, when they ought to have been : and surely it will not be pretended, that when the Orphans’ Court open and alter an account, upon what we think, insufficient proof, we may review “their order; but when that court not only refuses to open an account, upon the most clear and abundant proof, of fraud and mistake; but dismisses the application and decrees the costs of it, to he paid by the applicant, we have no power to review their proceedings and correct the error.
For my part, I am fully convinced of our jurisdiction in this case, and no less of our duty to reverse the order and decree of the Orphans’ Court, dismissing the rule to show cause why the account should not be opened, and ordering the applicant to pay the costs : and I am further of opinion, that the record be remitted with instructions, that the account ought to be corrected, by [90]*90striking out all the items not relating to the administration and settlement of the personal estate.
Nevius, J. and Elmer, J. concurred.
White, J. was absent when the cause was argued, and gave no opinion.