
    Case of John Richards guardian of the children of Hilary Baker.
    
      Monday, April 16.
    An order of confirmation by the Orphans’ Court, of a report of auditors on the final settlement of a guardian’s account, finding a balance due from the ward to the guardian, is a final decree.
    The Orphans’ Court have no power to decree payment of a balance from a ward to a guardian on the settlement of the guardian’s account with the ward.
    THE accounts of Richards having been referred by the Orphans’ Court of Philadelphia county to auditors for settlement, they reported a balance due to him from each of the children, except one, amounting in the aggregate, to 5000 dollars. The Court, after argument, “ adjudged that the exceptions to the report of the auditors be dismissed, and the report confirmed.” The wards offered to appeal, but the Court refused to permit the appeal without security being given for the balance found against them. A rule was then obtained in this Court to shew cause why they should not be J . . J permitted to enter an appeal on giving security for costs only, ■
    
      Atherton and Binney, in support of the rule:.
    The Orphans’ Court have made no decree in form ; they have merely affirmed the report of the auditors. The proceeding was to obtain a settlement of the account, which is very different from a proceeding to obtain payment. When the account is settled, the proceeding is finished. If more is desired, a petition is presented to compel payment, and before payment is decreed, the accountant may go into a new account between himself and the person who demands payment. A decree, therefore, confirming the account, is not to be understood as a decree of payment.^ Executors and administrators settle their accounts before the register ex parte, and, until the act of 4th April, 1797, sec. 9, Purd. Dig. 496, no notice of the passing of the account was required. It is not necessary, for the purposes of this argument, to deny the power of the Orphans’ Court to decree payment of the balance due from an executor, or guardian, though that is far from clear; but we positively deny the power of that Court to compel payment of a balance due from the next of kin to an executor or administrator, or from a ward to a guardian. The Orphans’ Court may discharge the guardian, but all beyond that is coram nonjudice. The powers of the Orphans’ Court are not co-extensive with those of.a Court of chancery. But even chancery would not decree a ward to pay a balance, on a bill filed by the ward against the guardian. There must be a cross bill by the guardian against the ward. A spiritual Court has power to make distribution, but no power to compel a debtor to bring the debt into Court. Clerke v. Clerke, 1 Ld. Ray. 585.
    
      Tod and Condy, contra.
    The Orphans’ Court possesses the power of chancery, and in a case like this, a master in chancery would state the -whole account, including any surplus paid by the guardian, and due to him from the ward; It is convenient even to minors that the account should be finally settled in the manner here adopted. It sometimes becomes necessary that advances should be made for maintenance, repairs, &c. some time before the minor’s money comes into the hands of the guardian. The jurisdiction of the Orphans’ Court is for the benefit both of ■the guardian and of the ward; and if the Court has power to settle the accounts between them, it certainly may decree payment of the balance. With respect to the form of the decree, the Orphans’ Court never make a formal decree. When they confirm the account, it is understood to be a decree of payment of the balance. If, however, the Orphans’ Court cannot make such a decree, there can be no appeal, because there is no final decree. They referred to Act of 1713, sec. 9. Furd. Dig. 493. Act of 11th March, 1809. Purd. Dig. 331.
   Gibson J.,

delivered the opinion of the Court.

As there is no pretence that the account itself was not final, the order of confirmation was, as respects the subject matter over which it was made a definitive, and not an interlocutory decree. In the case of a guardian, the Orphans’ Court has no power to enforce the balance found due : that can be done only under the act for the better settling of intestates estates, (3 Smithy 156,) which, for the purpose of defining the powers of that Court, is still in force j but which gives the power only in the case of executors or administrators. But even where the Orphans’ Court has power to enforce payment, the settlement of the account, and the striking of a balance, subject to distribution according to the intestate act, or the will, where there is one, is a definitive sentence or decree j and an application for ah order of distribution, is neither a necessary nor a usual course, but a subsequent arid distinct proceeding, in the nature of an execution of the previous decree. The shares of the distributees are usually recovered by action. Th« re is, therefore, no ground of objection that the decree was interlocutory.

Then, as to the objection that the children cannot appeal without giving security for the balance found against them. It is clear the Orphans’ Court has no power to decree a balance against a ward. The guardian is to account with the ward, not the ward with the guardian. He is to account for the administration of the funds that come to his hands; and when he has done that, the Court will discharge him; but that is the extent of its power, which can be exercised for the protection only of the rights of the ward; the rights of the guardian are to'be enforced by another tribunal. The guardian cannot cite the ward to a settlement; but if he has advanced beyond what he has received, that may, if the expenditure were proper and fitting to the estate and condition of the ward, create a responsibility that would be enforced elsewhere. But the Orphans’ Court can inquire into the payments of the guardian only to ascertain the disbursements out of the estate ; but to do so fully, the guardian states the whole account, although the balance against the ward, whether it bé great, or whether it be small, will have no operation but to shew that the guardian has discharged himself by an honest application of the fund. An opposite rule would be attended with disastrous consequences to the ward; for although thirty days notice is required previously to the confirmation of the account, still partial settlements are, from time to time, often made while the ward is a minor; and although the final settlement cannot take place before he is of full age, still the previous settlements are not unravelled as a matter of course, (except where the whole is brought up, on appeal, to the Supreme Court,) but only by way of review, when he can point out an error, and to do that where error actually exists, may often be out of his power. Beside, the notice is not actual, but constructive; the law requiring only that it should be given in three of the most public places in the county; to which, by the practice of the Courts, publication in the newspapers is usually added. It is, therefore, going far enough to say, the confirmation of the account shall discharge the guardian without directly involving the ward in personal liability. 'I’he Orphans’ Court is ex ojficio the protector of the ward, and interferes no further than to compel the guardian to account with him, but never to compel him to account with the guardian ; and all Courts entertain a salutary jealousy of the guardian, so far as to look with suspicion even on a settlement directly with the ward himself" immediately on his having come of age. I am, therefore, of opinion the appeal should be allowed to the children without security, except for costs.

Appeal allowed.  