
    [Philadelphia,
    January 18,1836.].
    WIMMER’S APPEAL.
    1. Under the provisions of the act of the 39th of March, 1832, the Orphan’s Court has power to compel a settlement of accounts by a testamentary trustee.
    2. Where a testamentary trustee had, upon his application to the Court of Common Pleas, under the act of the 14th April, 1828, been discharged from the trust, and a new trustee had been appointed on the application of the cestui que trust, it was held, that those proceedings were conclusive, and that the Orphan’s Court could not after-wards compel the old trustee to settle an account in that court.
    This was an appeal from a decree of the Orphan’s Court of Bucks County, in the matter of the settlement of the accounts of Philip Wimmer, surviving trustee of Margaret Swartz, intermarried with John Swartz.
    The facts material to a corree]: understanding of the points decided, are as follows:
    Michael Detterly, the elder, by his last will and testament, dated the 22d of December, 1806, and proved in the register’s office, on the 4th of December, 1812, among other things devised and bequeathed as follows, viz.: First — “I give unto my son, Michael, all those goods and effects and improvements, which I gave to him when he was first married. I also give and bequeath to my daughters, Mary and Eve, all the 'household goods I gave them, which I give and bequeath unto them, in lieu of services they rendered .to me, after they became of lawful age: and as to all the rest, residue and remainder of all my personal estate, goods and chattels, rents, interests and of whatever kind and nature whatever. I give, devise, and bequeath unto my dearly beloved children, Michael, Henry, John, Elizabeth, Catharina, Barbara, Margaret, Mary Magdalena, Susannah, and Eve, to be divided in equal shares between them — ’(provided always, that my daughters, Margaret,Barbara and Magdalena shall only enjoy the interest of such sum or sums as may come to their shares, or lots; but the principal sums to remain in the hands of the executors hereinafter named, during their life times, and after their respective deceases, to be divided to each of their children, share and share alike, excepting my daughter Margaret’s son Jacob is to have no share, for divers good causes me thereunto moving.) Further, it is my absolute will and testament, that neither of my said children, which has or have received any sum or sums of money, for which they have given me bonds, notes, or standing as book debts, shall receive any part, until those which have not received any thing shall be equal in share or shares; and lastly, I do hereby nominate, constitute, and appoint my trusty son, Michael Detterly, and my trusty son-in-law, to be my executors of this my last will and testament,” &c. &c.
    Margaret, one of the legatees named in the said will, was, at the date thereof, married to John Swartz.
    In the inventory filed by the executors, among the debts “ due by the heirs upon obligations,” is the following:
    
      John Sivartz < £191 165. Id.
    
    And among those “due by book,” was enumerated:
    
      John Swartz £21 6s. 8 d.
    
    The executors settled their accounts according to law, on the 22d of December, 1813, when there appeared to be a balance in their hands, including the debts charged to the heirs, of
    $17,375 82,
    Which, divided into eleven parts, would give to each legatee the sum of $1,579 62.
    The share of Margaret Swartz being thus $1579 62
    If the debts due by the husband to the testator were deducted, amounting to:
    Book account, £21 6s. 8d. or $56 39
    Bond,&c. £191 16s. Id. or $511 54
    - $568 43
    There would remain the nett sum of $1011 19.
    Michael Detterly, one of the executors, paid the interest upon this sum to Margaret Swartz, the legatee, annually, from the year 1813 to 1832, when he died. On the 23d of April,. 1832, Philip Wimmer, the surviving executor, presented his petition to the Court of Common Pleas of .Bucks County, setting forth that by reason of the death of the said Michael Detterly, the trust created by the said will had survived to him: That he had never received any part of the money accruing to the said Margaret; and, that being advanced in years and residing at a distance from the said Margaret, he was desirous of being relieved from the said trust: tie therefore prayed the court to discharge him, and appoint another in his place.
    At the same time was presented the petition of Joseph Atherholt, administrator of the goods, &c. of Michael Detterly, the deceased co-trustee, setting forth that the said Michael received the principal amount of the share accruing to the said Margaret, and paid her the interest during his life; that as administrator he had in his hands the sum of $1011 19, and, as the co-trustee, Philip Wimmer, had petitioned to be discharged ; he prayed the court to appoint some other person to receive the money.
    Whereupon the court ordered and directed, that Philip Wimmer should be dismissed from his said trust.
    At the same court was presented the petition of John Swartz, the husband of the said Margaret, setting forth the preceding facts, and praying the court to appoint some suitable person as trustee. Accordingly, on the 18th of June, 1832, the court appointed Francis Hendricks trustee of the said Margaret Swartz, in' the place of Philip Wimmer discharged.
    On the 28.th of December, 1832, the petition of John Swartz, in right of his said wife, was presented to the Orphan’s Court of Bucks County, setting forth the will of Michael Detterly, sen., and the appointment of his son, Michael Detterly, and his son-in-law, Philip Wemmer, as trustees for his daughter Margaret, and praying a citation to the said Philip Wimmer, and to Joseph Atherholt, administrator of Michael Detterly, Jr. deceased, commanding them to file a statement of their accounts as trustees aforesaid, returnable to the next Orphan’s Court.
    The answer of Philip Wimmer denied his having received any money of the said Margaret Swartz, and set forth the proceedings in the Common Pleas, by which he was discharged from the trust, as a bar to his liability to account.
    The answer of Atherholt relied, upon the same proceedings, and upon his payment of the fund to the trustee appointed by the Common Pleas. He admitted that he had in his hands, however, the interest of seven months on the principal sum, which had accrued to the period of the death of Michael Detterly, and which he had-tendered to John Swartz.
    On the 13th of March, 1833, the Orphan’s Court ordered Philip Wimmer to file an-account of his trusteeship in the register’s office of Bucks County, and he having refused compliance, the court, upon the application of the petitioner, under § rx. of the fifty-seventh section of the act of 29th March, 1832, directed a reference to auditors to take proof of the facts, and to report an account against the defendant.
    On the 5th of June, 1833, the auditors reported an account, in which they charged Wimmer with one eleventh part of the estate of Michael Detterly, and gave him credit for the debts due by Margaret Swartz and her husband to hep father ; the balance being as above stated, §1011 19. They also stated an interest account, finding a balance due by Wimmer to Margaret Swartz of §57 44.
    Both parties excepted to this report'. The petitioner, Swartz, on the ground, principally, of the debts due by the husband having been deducted from the wife’s share of the estate; and the defendant, because he was not accountable at all, the money never having been in his hands.
    On the 12th of November, 1834, the Orphan’s Court, after argument, set aside so much of the report of the auditors as credited the trustee with the sum of §511 54; and directed the trustee to be charged with that sum, and interest from 'the 22d of April, 1813.
    The defendant, Wimmer, having appealed to this court, assigned the following errors:
    1. The court erred in decreeing that the sum of §511 54, with which the trustee is credited in the auditors’ report, for bonds and notes inventoried against John Swartz, be struck off the credit side of the account, and that the executor be charged in the account with the said sum of §511 54, with interest from the 22d of December, 1813.
    2. The court also erred in decreeing that Philip Wimmer, the surviving trustee, should account for the trust fund devised to the use of Margaret Swartz; when the administrators of the deceased co-trustee admitted, in his answer to the citation, that the said trust fund was in his hands, and that the said Michael Detterly, Jr., his intestate, had received and held the said trust fund in his life time, and had always acted as trustee for the said Margaret Swartz, and when there was no allegation of insolvency on the part of the said Michael Detterly, Jr.
    3. The court erred in refusing to compel the administrator of Michael Detterly, Jr., the trustee in whose hands the trust money had been placed, to file a settlement of his accounts of the said trust fund.
    ■4. The court erred in compelling Philip Wimmer to file a settlement of his accounts as trustee of Margaret Swartz, when he had been previously discharged from the trust by the Court of Common Pleas.
    
      5. The Orphan’s Court had no jurisdiction of the matter; but the proceedings on the citation and settlement should have been in the Court of Common Pleas.
    
      Mr. Porter, for the appellant:
    1. The Orphan’s Court had no jurisdiction in the case. They had no power, until it was expressly given by the act of 1834, to compel payment of legacies. McCullough v. Montgomery, (7 Serg. 4* R. 31.) As soon as the executors settled in their accounts in 1813, in the Orphan’s Court, and those accounts were confirmed, their functions as executors ceased, and those of trustees commenced. Now, the Orphan’s Court has never been supposed to possess jurisdiction over trustees, except in some special cases, where there are minors. {Act of 1713.) Here there was no minor, and the estate in their hands was not that of a decedent. The acts of 1818,1823, 1825, &c., which give the Common Pleas jurisdiction of trusts and over trustees, are general in their terms, and seem to include all cases of trust. These acts have been held to extend to executors. Morroio v. Brenizer, (2 Rawle, 183.) The act of 1832, relating to Orphan’s Courts, did not go into operation until October, 1832, after the jurisdiction of the Common Pleas had attached — though it’does not appear that that act has made any alteration in the jurisdiction of the Orphan’s Court, respecting trusts.'
    2. The court had no power to require a settlement by the appellant, after he had been discharged by the Court of Common Pleas from his trust. The act of the 14th April, 1828, authorizes that court to discharge a trustee, either on his own application, or on the application of the cestui qui trust. It provides for due notice to all persons interested, and gives an appeal to the party aggrieved. The proceeding, then, cannot be disturbed in this collateral way. Besides, it appears by the record, that Swartz actually participated in the proceedings in the Common Pleas, and ratified them by applying for a new trustee.
    3. 4. The Orphan’s Court was wrong in charging Wimmerwith any part of the trust fund. They ought to have exhausted the estate of the other trustee, before they came upon the appellant, who was not liable in the first instance. Williams on Executors, 1112, 1118, 1119, 1125, &c. 2 Vernon, 299. 1 Peere Williams, 141. 4 Madd. Ch. Rep. 191. Wentworth on Executors, 306. Sierre? s Appeal, (2 Penn. Rep. 419.) Langford v. Gascoyne, (11 Vesey, 335.) Gill v. The Attorney General, {Hard. 314.) The settlement of a joint account does not prove that both executors received the money. In Brown’s Appeal, (1 Dali. 312,) a distinction was taken between creditors and legatees. One administrator cannot sue the other for money received by him. Steinman v. Sanderson, (14 Serg. 4’ R. 357.) Simon v. Albright, (12 Serg. Sp R. 
      429.) 2 Bridgman’s Digest, 650, s. 214. 12 Mod. 560. Rex v. Bray, (Parker, 172.)
    5. The court erred iu charging the appellant with the amount of the bond. It was conceded that Swartz, the obligor, was insolvent. There the loss ought to have been borne by all the children. But upon the true construction of the will, this bond ought to have been deducted from the wife’s share. Yohe v. Barnet, (1 Binn. 358,) shows the rule in case of an intestacy. This may be considered an advancement to the son-in-law, for the benefit of the daughter; who could not in law execute a bond. Wentz v. Dehaven, (1 Serg. Sp R. 312,) shows that a loan to a son-in-law may be regarded as an advancement. There are many cases in which “ grand children” have been held to be included in the words “ children.” Pemberton v. Parlze, (5 Binn. 601.) Gale v. Bennett, (Ambler, 681.) 3 Vesey, 421. 4 Vesey, 437, 693. 10 Vesey, 195. 2 Eden, 194. Mr. Porter also cited Torbert v. Tioining, (1 Yeates, 432.) Jamieson v. Brady, (6 Serg. <)• R. 466.) Evans v. Knmr, (4 Rawle, 66.) JVewlin v. JVeidin, (1 Serg. 4* A. 275.)
    Mr. Randall, for the appellee :
    1. The jurisdiction of the Orphan’s Court appears clearly from the acts of 1713 and 1832. The powers given by the act of 1713, are confirmed by the constitution. In Richards v. Balter, (6 Serg. 4* R. 462,) the jurisdiction of the Orphan’s Court is considered to go beyond the estates of decedents. Guier v. Kelley, (2 Binn. 299.) M’Coy v. Porter, 17 Serg. R. 60.) At all events the act of 1832 gave jurisdiction. This is a remedial act, and to be construed liberally; and although the Common Pleas undertook to discharge Wimmer, before the act went into operation', yet this does not remove his liability to account for money received previously. MFarland v. Commissioners, ¿pc., (12 Serg. ¿p. R. 298.)
    2, 3. This was a joint trust; and on the death of Detterly the duties and responsibilities survived to Wimmer. It is said that these trustees divided the duties between them, one taking care of the trust for the daughter Magdalena, and the other of the trust for Margaret. There is no evidence of this beyond their answers. They are bound by their account as settled. M’Coy v. Porter, (15 Serg. 4*. R- 571. [Gibson, C. J. — That case has been reconsidered.] It is true that the decision vras modified at a subsequent term, (17 Serg. 4* R• 59,) but the principle remains untouched. After the lapse of nineteen years the court will not permit the account to be reviewed. The distinction taken in the case of Brown’s Appeal, (1 Dali. 312,) between creditors and legatees, is not supported by the authorities; as is shown by the note to Mr. Wharton’s edition of Dallas.
    
    
      4. The court was right in charging Wirmner with the amount of Swartz’s bond. The receipt of the interest from 1813, relied upon, on the other side, cannot bind Mrs. Swartz,,who was then, and is yet, a feme covert. It was manifestly the intention of the testator, that these legacies should be for the sole and separate use of his married daughters. The cases cited show, that it is of no importance what words are used, if the intention be apparent. Then, as to the suggestion that a son-in-law is to be included in the term children, it is going much further than any case has yet gone. There is no relationship as in the case of a grand child. It has been held that a grand child by marriage is not entitled to take, under the description of a child. 2 Williams on Executors, 725,6.
   The opinion of the court was delivered by

Sergeant, X,

who, after stating the' material facts, proceeded thus:

By the appellant’s fifth exception, a question has been made as to the right of the Orphan’s Court to call trustees to account, which it is proper first to consider; for if that court had no jurisdiction in the matter, it would be unnecessary to discuss the other exceptions. It becomes important to decide this point, because proceedings in the Orphan’s Court against trustees, merely as such, have not been very frequent, and must now depend on the construction of the recent act of the 29th March, 1832, relating to Orphan’s Courts. A reference to our early laws, shows that the beginnings of the Orphan’s Court were very feeble ; but its powers have since been extended by the legislature, until they embrace a large and important sphere of jurisdiction. The first law of the province, which I have been able to discover, was passed in 1693. It enacted, that the justices of each respective County Court should sit twice in every year, to inspect and take care of the estates, usage, and employment of orphans; which should be called the Orphan’s Court, that care might be taken for those that are not able to take care of themselves. Another law of the same year required all executors, and guardians to persons under age, to give bond to the Court of Orphans, faithfully to discharge their trust. It is probable, that both the name and jurisdiction of this court were borrowed from the Court of Orphans of the city of London, which had the care and guardianship of children of deceased citizens of London, in their minority, and could compel executors to file inventories, and give security for their estates. Priv. Lond. 324. It is from the same source that several of our other laws and usages derived their origin, — such as foreign attachments, — feme-sole traders, — married women privately examined, conveying their estates, with their husbands, by deed: which practice afterwards pervaded this country generally, and is lately established in England by statute. Priv. Lond. 70, 187. Bob. 225. 1 Cro. 699. 1 Prest. Abs. Tit. 336., None of these were known to the common law; but may be accounted for, when we recollect that many of the first colonists who accompanied William Penn, came from the city of London. In 1701, by the act for establishing courts of jurisdiction in the province, the Orphan’s Court had power to award process, and cause to come before them all and every such person and persons as were, or should be, entrusted with, pr in any ways accountable for any lands, tenements, goods, chattels or estate, belonging, or which should belong to any orphans, or persons under age, either as guardians, tutors, trustees, executors or administrators, and cause them to make and exhibit within a reasonable time, true'and perfect inventories and accounts of the said estate, and to require and take bonds and securities of such guardians, trustees, tutors, executors and administrators, for the legacies, portions, shares and dividends of estates, real and personal, belonging to orphans and minors, as occasion shall require, &c. This act was repealed not long after-wards : but in 1713, the court was revived, and its jurisdiction more precisely marked out, as well as extended, by an act, which remained in force from that time till 1832. It was declared a court of record; and power was given to it to cause to come before it all persons who, as guardians, trustees, tutors, executors, administrators, or otherwise, should be entrusted with, or in any wise accountable for any lands, tenements, goods, chattels or estate, belonging to any orphan or person under age, and to cause them to make and exhibit inventories and accounts of the estates. They were also empowered to oblige the register general, or his deputies, to bring in duplicates of all bonds, accounts, &c., relating to such estate. By the third section, they could compel persons, having the care and trust of minor’s estates, to give security, if like to prove insolvent, or neglecting to file inventories and accounts. By the fourth section, executors, guardians, or trustees might, by leave of the court, put out their minors’ money at interest; and in the eleventh section other powers over trustees for minors were given to the court. Various supplements to this act, and acts on other subjects, passed from time to time, greatly enlarged the power of the Orphan’s Court. Most of the provisions of these acts have now been introduced into the several revised codes of laws, passed by the legislature since 1830.

In the fourth section of the act of the 22d March, 1832, relating to Orphan’s Courts, it is declared, that “ the jurisdiction of the several Orphan’s Courts shall extend to, and embrace the appointment, control, removal and discharge of guardians, — the settlement of their accounts — the removal and discharge of executors and administrators, deriving their authority from the register of the respective county — the settlement of the accounts of such executors and administrators, and the distribution of the assets, or surplusage of the estates of decedents after such settlement, among creditors or others interested; to the sale or partition of the real estate of decedents among heirs — and, generally, to all cases within their respective counties, wherein executors, administrators, guardians or trustees are, or may be possessed of, or undertake the care and management of, or are in any way accountable for any real or personal estate of a decedent — and such jurisdiction shall be exercised in the manner hereinafter provided.” The fifty-seventh section points out the manner of proceeding in various clauses, adapted to the respective cases, against persons answerable to the jurisdiction of the court. Sections fourteen, sixteen, and twenty, speak of trustees, and other sections, of executors, administrators, guardians, or other accountants.

It will be observed, by a comparison of the acts of 1701 and 1713, with that of 1832, that the language of the latter is more extensive, in relation to the jurisdiction over trustees, than that of the former. The acts of 1701 and 1713, were confined to cases of trustees having property belonging to orphans or persons under age; but the act of 1832 comprehends, generally, all cases where trustees are accountable for the estate of a decedent. This change, in the words of the act, was evidently intended to enlarge the power of tlie court; and there are many instances in which such a power is salutary and useful; furnishing a more complete and speedy remedy against a trustee, than could otherwise be obtained. It is true that a remedy is here given to a cestui que trust of property, which had been the estate of a decedent, which other cestui que trusts might not enjoy. But it seems to have been the policy of the legislature, to confer on the Orphan’s Court the superintendance of the property of decedents, in almost every respect, and to make all persons accountable in that court, into whose hands such property came; and, indeed, to enable it to hear and determine, by proceedings different from those of courts of common law, almost all judicial transactions, immediately arising from the decease of testators or intestates. In the recent codes, further jurisdiction is vested in. this court over many subjects never before possessed. I am of opinion that the Orphan’s Court had power to call Wimmer to account, as trustee, under the will of M. Detterly, senior, by the provisions of the act of the 29th March, 1832.

But in the case before us, the prior decree of the Court of Common Pleas, on the petition of Wimmer, dismissing him from his trust, was conclusive; and after that decree, the Orphan’s Court could not proceed to compel him to appear there and settle his accounts. By the third section of the act of the 14th of April, 1828, where a trustee has executed the trust or powers delegated to him, he may file his accounts in the Court of Common Pleas, on oath or affirmation, exhibiting a particular statement of his receipts and expenditures, and after approval by the court, may pray a discharge. Citation is then to issue to persons interested, and the court are to proceed to hear and determine, and if it appears that the trustee has executed the trust agreeably to his power, he is to be discharged for ever. By the fourth section, any trustee who may not have executed the trust or power delegated to him, and who is desirous of being discharged from the further execution of the trust, may make application to the court, setting forth the facts, and praying the leave of the court to make a settlement of his accounts, so far as he has proceeded in the execution of the trusts, and that on surrendering the residue of the estate under his care to such person or persons as the court may appoint, the court will make an order dismissing such trustee from the duties of his appointment — whereupon the court is to proceed to hear and determine the matter, and make such order as to them shall appear just and equitable; and if it shall appear that the trustee has executed the trust agreeably to his powers, he shall be discharged "therefrom for ever. The 5th section gives a right of appeal within one year.

It was under the 4th section that the proceedings in the Common Pleas in this case were had. Wimmer stated in his petition the appointment of M. Detterly, Jr. and himself executors — that the portion of Margaret was to remain in their hands — that Detterly received Margaret’s share, and acted as her trustee — his decease, and the devolution of the trust on Wimmer — that he was desirous of being discharged from the further execution of the trust, and had never received her share in trust for her use, and prayed the court to make an order dismissing him from the duties of his appointment and to appoint another. Atherholt’s petition confirmed this statement, and both were accompanied by an affirmation. The court then decreed that Wimmer should be discharged from the trust for ever. In so doing, we must take it for granted it was after hearing and examination of the allegations and proof — that it appeared to them, in the words of the act, just and equitable they should do so — that it also appeared Wimmer had executed the trust agreeably to his powers, and that the contents of his petition were true, namely, that he had received no trust money and had no account to settle. Otherwise the court would not have dismissed him, without first requiring him to settle his account. If, after being thus for ever dismissed, on the ground that he had executed his trust, and had received no moneys as trustee, he can again be called on in another court, to answer a charge that he had received money as trustee and had an account to settle, it is evidently a proceeding directly at variance with the former, and contradictory to the decree of the court. The principle is now so familiar as almost to render it superfluous to refer to it, that the decree of a court of competent jurisdiction, on a matter within that jurisdiction, cannot be controverted by a proceeding in another court. Here the proceeding in the Orphan’s Court brings directly in question, matters already heard and adjudicated in the Court of Common Pleas: and therefore the proceeding in the Orphan’s Court was in this respect erroneous.

Decree reversed.  