
    [665] [*] BURROUGH and ux. against MICKLE’S Executor.
    A certiorari will remove a cause from the Orphans’, to this court, in cases of account.
    This was a certiorari to the Orphans’ Court, brought by Burrough and wife, against the executor, to remove into this court the proceeding of the Orphans’ Court, on the settlement of the account of the executor. The account had been excepted to, and confirmed by the Orphans’ Court.
    
      Mr. Woodruff, for the executor,
    brought up for the consideration of the court, a preliminary question as to jurisdiction of the subject matter; that the appeal properly lay to the ordinary. He produced the minutes of the Prerogative Court, from which he cited several cases of appeals from the Orphans’ Court, in cases of account. The practice and rules of proceeding [f] in this court, being a court of common law, is no way calculated to review and restate the accounts of executors and administrators, and great inconvenience would result from it.
    
      Pearson, contra.
    
      This cause was spoken to at the close of the last term, when the court said that the subject should be looked into in vacation; and now, at this term, the cause being called on in the paper, the opinion of the court was asked on the foregoing preliminary question.
   Kirkpatrick, C. J.

We are all of opinion, that this court has jurisdiction of this cause.

The counsel not being prepared to proceed in the cause, the main points intended to be raised were not gone into.

From the course which this cause took, the [666] following opinion, made up by Peeking ton, J., in vacation, was not delivered. But as it may be of use to show on what ground the court formed its opinion, as to the subject of jurisdiction, it is thought proper to insert it here.

Pennington, J.

The 19th section of the act establishing the Orphans’ Court, Pat. 63, provides that “all final sentences or decrees of the Orphans’ Court, where no appeal is given to the Prerogative Court, shall be subject to removal by oertiorari, into the Supreme Court.” An important question then arises: is an appeal in this ease given to the Prerogative Court. One part of the title of the act, is to “ascertain the power and authority of the ordinary.” The preamble is in accordance with the title: “Whereas, it is necessary that the power and authority of the ordinary of the State, and his surrogates, should be defined.” The first section enacts, that from and after the passing of this act, the authority of the ordinary shall extend only to the granting of probates of wills, letters of administration, letters of guardianship, and marriage [*] licenses, and the hearing and finally determining of all disputes that may arise thereon.” It would be assuming too much, to say that a dispute about settling the account of an executor, was a dispute about the probate of the will of the testator; this cannot be intended. If the seventeenth section of this act, which declares that the sentence or decree of the Orphans’ Court, on the final settlement of the accounts of executors, shall be conclusive on all parties, and forever discharge such executor from all demands of creditors, legatees or others beyond the amount of such settlement, &c., stood alone, it might and probably would be said that neither the ordinary nor this court, would either of them have jurisdiction of this cause. But then this would be in hostility with the express provision of the 19th section before recited. It is the duty of the court to reconcile these apparently conflicting clauses in the same act, if by any rule of law it can be done.

It was a rule in the ecclesiastical courts, from whence our ordinary and his surrogates derived their rules of practice, that an account made in the absence of creditors, legatees and others interested in the estate, who had not been called to be present at the making of the account, was not conclusive, or any way prejudicial to them; hence, it was the practice to cite all persons interested in the estate, to be present at the making of the account; and if this was done, whether they appeared or not,- they were concluded, and the account as to them was final. The sixteenth section of [667] the act under consideration, provides, in lieu of this citation, another mode of calling on the persons interested in the estate, by public advertisement; and then, in the seventeenth section, declares that accounts thus made, shall be conclusive upon all parties. The word conclusive, here made use of, I apprehend to be in contradistinction to the imperfect or inconclusive accounts sometimes formerly made without notice or citation; but, in my opinion, this does not destroy [*] the provision in the 19th section, made in explicit and unequivocal language, declaring that all final sentences or Recrees of the Orphans’ Court shall 'be subject to removal by certiorari, into this court, in cases where no appeal is givén. As to arguments of inconvenience, they would be more properly addressed to the Legislature. In what manner this court will proceed, after the question of jurisdiction is settled, is a matter of further consideration. On the whole, I am of opinion that this court has jurisdiction of the cause.

Cited in State v. Mayhew, 4 Halst. 70; State v. Hanford, 6 Halst. 71.  