Kinsey C. J.
delivered an elaborate opinion upon all the points that had been raised, in which he laid down the following propositions, illustrating and establishing them by reference to numerous authorities.
That this‘court upon the certiorari cannot go out of the record before them: that the facts stated in the proceedings of the court below were finally and decisively settledj this court being to declare the law alone arising from them. Rex v. Stoughton,
The orphan’s court is not a court of common law, but a court partaking of the powers of a chancery and perogative jurisdiction, instituted by law to remedy and supply the defects in the powers of the perogative court, with regard to the accountability of executors, administrators and guardians. It is a useful and necessary tribunal, and every construction should be given to the act which, consistently with the obvious intentions of the Legislature, will advance and extend its remedial provisions. The authority given to the court by the act of December If 84, (d) is very extensive. It is vested by the seventh section with “ full power and authority” to hear and determine all disputes and controversies whatiC soever respecting the existence of wills, the fairness of in- “ \ entories, the right of administration, and the allowance of <£ the accounts of executors, administrators, or trustees &c.” 6S and to award process and cause to come before them all. [156]*156c< person or persons who as executors, administrators, guar41 dians, trustees, or otherwise shall be intrusted with, or in any “ way accountable for any lands &c. belongingto any orphan or 44 person under age.” The 15th section directs that i( wher- “ ever disputes happen respecting the existence of a will, the “ fairness of an inventory &c.” Citations shall issue to all persons concerned! and the 17th section makes the settlement final to all parties unless where “ some fraud or apparent mistake” shall be proved.
With regard to the errors in the inventory, this court can have no jurisdiction or right to inquire into them, they are the subject of an appeal to the governor. So that in the case before the court, all questions touching the evidence or fact of these items, are out of our jurisdiction; they are not in» quirable into here.
It has been contended that by the strict grammatical construction of the 7th section of the act, the words <l orphans or persons under age” stand connected with the preceding words, and limit the jurisdiction of the orphan’s court in all cases where one or more of the parties do not fall within this description. This is evidently a misconstruction: the preceding powers are general, and that court may exercise them in all cases of wills and inventories &c. This has been the uniform practice, and’ upon any other construction the act would be almost a dead letter.
The act was not designed to diminish the jurisdiction of the ordinary, or to institute a trial by jury, but merely to create a more respectable tribunal, with more full and perfect powers to adjust and decree upon the accounts of executors and others, with an appeal on matters of fact to the Govern- or, and on matter of law to this court. It is essential to the jurisdiction of the court, that they should have power to issue a citation to compel an account as well against the surviving executor, as against the executor of a deceased co-executor; otherwise no account could be compelled. Each executor is liable to account for what comes to his own hands merely; (a) and there is no one case in the books to the con[157]*157trary. If we put tlie case then, that the surviving executor had received nothing, or died insolvent, the assets having actually come to the hands of the executor first dying, the absurdity of the objection must be obvious. (a)
It has been strenuously argued that although the orphan’s court may compel executors to account for assets or effects of the testator in their hands, yet they have no authority to try an action of debt; or under pretence of citing an executor to account, to try a claim for a debt which he denies that he owes, or which he alleges he has paid. It has been said that in this Case the executor is as much a stranger as any other debtor, and the orphan’s court have no more right to adjudicate upon a claim against him by the testator, than upon a demand against any other individual. They allege that nothing is assets until recovered or reduced by the executox-s into actual possession, and proved to have come into his hands. But in this case neither the bond nor the rents came to Woodward junior as executor; but if they came to his hands at all, it was as a debtor and these monies cannot be charged to his account as executor, until they have been recovered by due course of law.
These doctrines cannot he recognised by us, and they are contrary to the act of assembly. The law has given the orphan’s court full power to compel the executors to account generally, and to decree the balance due to the legatees in their hands, without restraining them in the exercise of this power to any particular kinds of claims, or subjects of controversy. There is no real difference, as regards the executor, between assets in his hands, or a debt in his hands; it is therefore nothing more than an inquiry upon the subject of the inventory.
All the argument turns upon the objection that the executor is thereby deprived of the benefit of atrial by jury; whereas it is evident, that being both executor and debtor, no action could be instituted against him at common law to try the validity of the claim. Unless he can sue himself the [158]*158remedy must be against him as accountant to the legatee, either in chancery or in the orphan’s court, and in either case the trial by jury is equally out of his reach; by taking upon himself the trust he knows» he must account, and volenti not Jit injuria.
With regard to the appointment as executor operating an extinguishment of the debt there is no difference between the rules of law and equity: they are the„same. Courts of equity put the same construction on wills, statutes, legal estates and rights as courts of law; and on this point they perfectly coincide. Selwyn v. Brown, (a) 3 Bac. Abr. 11. (Wils. Edit.) The ruléis, that such release by operation of law shall not take effect against a creditor or legatee, but the sum due from the executor shall remain as assets, for the payment of debts and legacies. In the case of Selwyn v. Brown, the Ld. Chancellor seemed to doubt, whether a debt due from an executor should be assets for the payment oflegacies; in general he rather thought it should, but held that upon an express devise of all the rest and residue, the debt would pass and not be extinguished.
It has been contended, also, that if such a power be really granted to the orphan’s court it is unconstitutional, because the right to a jury is secured by that instrument to each individual of the community.
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Kinsey C. J.
delivered an elaborate opinion upon all the points that had been raised, in which he laid down the following propositions, illustrating and establishing them by reference to numerous authorities.
That this‘court upon the certiorari cannot go out of the record before them: that the facts stated in the proceedings of the court below were finally and decisively settledj this court being to declare the law alone arising from them. Rex v. Stoughton,
The orphan’s court is not a court of common law, but a court partaking of the powers of a chancery and perogative jurisdiction, instituted by law to remedy and supply the defects in the powers of the perogative court, with regard to the accountability of executors, administrators and guardians. It is a useful and necessary tribunal, and every construction should be given to the act which, consistently with the obvious intentions of the Legislature, will advance and extend its remedial provisions. The authority given to the court by the act of December If 84, (d) is very extensive. It is vested by the seventh section with “ full power and authority” to hear and determine all disputes and controversies whatiC soever respecting the existence of wills, the fairness of in- “ \ entories, the right of administration, and the allowance of <£ the accounts of executors, administrators, or trustees &c.” 6S and to award process and cause to come before them all. [156]*156c< person or persons who as executors, administrators, guar41 dians, trustees, or otherwise shall be intrusted with, or in any “ way accountable for any lands &c. belongingto any orphan or 44 person under age.” The 15th section directs that i( wher- “ ever disputes happen respecting the existence of a will, the “ fairness of an inventory &c.” Citations shall issue to all persons concerned! and the 17th section makes the settlement final to all parties unless where “ some fraud or apparent mistake” shall be proved.
With regard to the errors in the inventory, this court can have no jurisdiction or right to inquire into them, they are the subject of an appeal to the governor. So that in the case before the court, all questions touching the evidence or fact of these items, are out of our jurisdiction; they are not in» quirable into here.
It has been contended that by the strict grammatical construction of the 7th section of the act, the words <l orphans or persons under age” stand connected with the preceding words, and limit the jurisdiction of the orphan’s court in all cases where one or more of the parties do not fall within this description. This is evidently a misconstruction: the preceding powers are general, and that court may exercise them in all cases of wills and inventories &c. This has been the uniform practice, and’ upon any other construction the act would be almost a dead letter.
The act was not designed to diminish the jurisdiction of the ordinary, or to institute a trial by jury, but merely to create a more respectable tribunal, with more full and perfect powers to adjust and decree upon the accounts of executors and others, with an appeal on matters of fact to the Govern- or, and on matter of law to this court. It is essential to the jurisdiction of the court, that they should have power to issue a citation to compel an account as well against the surviving executor, as against the executor of a deceased co-executor; otherwise no account could be compelled. Each executor is liable to account for what comes to his own hands merely; (a) and there is no one case in the books to the con[157]*157trary. If we put tlie case then, that the surviving executor had received nothing, or died insolvent, the assets having actually come to the hands of the executor first dying, the absurdity of the objection must be obvious. (a)
It has been strenuously argued that although the orphan’s court may compel executors to account for assets or effects of the testator in their hands, yet they have no authority to try an action of debt; or under pretence of citing an executor to account, to try a claim for a debt which he denies that he owes, or which he alleges he has paid. It has been said that in this Case the executor is as much a stranger as any other debtor, and the orphan’s court have no more right to adjudicate upon a claim against him by the testator, than upon a demand against any other individual. They allege that nothing is assets until recovered or reduced by the executox-s into actual possession, and proved to have come into his hands. But in this case neither the bond nor the rents came to Woodward junior as executor; but if they came to his hands at all, it was as a debtor and these monies cannot be charged to his account as executor, until they have been recovered by due course of law.
These doctrines cannot he recognised by us, and they are contrary to the act of assembly. The law has given the orphan’s court full power to compel the executors to account generally, and to decree the balance due to the legatees in their hands, without restraining them in the exercise of this power to any particular kinds of claims, or subjects of controversy. There is no real difference, as regards the executor, between assets in his hands, or a debt in his hands; it is therefore nothing more than an inquiry upon the subject of the inventory.
All the argument turns upon the objection that the executor is thereby deprived of the benefit of atrial by jury; whereas it is evident, that being both executor and debtor, no action could be instituted against him at common law to try the validity of the claim. Unless he can sue himself the [158]*158remedy must be against him as accountant to the legatee, either in chancery or in the orphan’s court, and in either case the trial by jury is equally out of his reach; by taking upon himself the trust he knows» he must account, and volenti not Jit injuria.
With regard to the appointment as executor operating an extinguishment of the debt there is no difference between the rules of law and equity: they are the„same. Courts of equity put the same construction on wills, statutes, legal estates and rights as courts of law; and on this point they perfectly coincide. Selwyn v. Brown, (a) 3 Bac. Abr. 11. (Wils. Edit.) The ruléis, that such release by operation of law shall not take effect against a creditor or legatee, but the sum due from the executor shall remain as assets, for the payment of debts and legacies. In the case of Selwyn v. Brown, the Ld. Chancellor seemed to doubt, whether a debt due from an executor should be assets for the payment oflegacies; in general he rather thought it should, but held that upon an express devise of all the rest and residue, the debt would pass and not be extinguished.
It has been contended, also, that if such a power be really granted to the orphan’s court it is unconstitutional, because the right to a jury is secured by that instrument to each individual of the community. To this I answer, the constitution does not extend the right to a trial by jury to cases which did not fall within its province before the existence of that charter. The chancery, prerogative and spiritual courts, have always proceeded without the intervention of a jury; and the orphan’s courts» being invested with those powers as defined and limited by the act of assembly, may exercise them as before without any violation of the right to trial by jury.
It has further been contended, that this court must reverse the judgment in to to if there he any error. The cases that, have been cited do not prove this doctrine. Wherever the objection applies to the whole and the court cannot separate the good from the bad it is so but not otherwise.
The decree of the orphan’s court must be affirmed.
Smith J. and Chetwood J. assented.
1 Str. 83.