
    [Philadelphia,
    Dec. 30th, 1822.]
    FLINTHAM appellant against FORSYTHE and wife, appellees. SAME against L’AMY and wife, appellees.
    APPEAL.
    It seems the Orphans Court cannot decree the payment of a distributive share, admitted by the administrator to be in his hands, where his accounts are filed in the Register's Office, and not brought into the Orphan’s Court.
    But where the accounts of an administrator are brought into the Orphan’s Court, it may decree payment of a distributive share to one heii', where there is no dispute between him and the administrator as to the balance due him, though the accounts are, on the application of other heirs, depending- before auditors.
    The Orphan’s Court cannot decree payment by an administrator, of the costs recovered in a suit brought against him by an heir in a court of common law, to recover his distributive share.
    These cases came up upon appeal from the Orphans’ Court of the City and County of Philadelphia. The appellees; on the 5th March, 1821, presented, a joint petition to the Orphans’ Court, Claiming, respectively, distributive shares of the estate of Elizabeth Febiger, deceased, and setting forth, that William Flintham, the appellant, administered thereto, and had settled his accounts in the Register’s Office, by which he admitted a balance in his hands, to be distributed according to law. That the petitioners had brought suits in the District Court, for the City and County of Philadelphia, against Flintham, for the recovery of their distributive shares, and had respectively obtained judgments,- on the 14th December, 1820, for the sum of 1466 dollars, and 33 cents, which remained unpaid. And praying the court to issue citations to the said Flintham, to appear arid shew cause, why the Orphans’ Court should not decree him to pay over the sums they were entitled to, as heirs of the said E. Febiger,. The Orphans’ Court directed citations to issue, according to the prayer of the petition,; and on the 17th Mpril,-I82l, after hearing, made a decree in favour of each of the petitioners, that the appellant should pay the sum of 1466 dollars, and 33 cents, with»interest from the 14th December, 1820, and 26 dollars and 50 cents, costs of suit in the District Court, and also, the costs incurred by the decree:
    
      Bradford, for the appellant,
    contended, that the Orphans’ Court had no jurisdiction over the case, and that their decree was, therefore, void. It appears by the petition, that the accounts of the appellant were settled in the Register’s Office: there is no reason to believe that they ever were in the Orphans’ Court. The Orphans’ Court cannot make a decree respecting accounts filed in the Register’s office, never brought into the Orphans Court, nor before them: They had full power under the first section of the act of March 21th, 1813, Purd. Dig. 490, to cause the Register to transmit the accounts into the Orphans Court, or to compel the administrator to exhibit them: but neither of these proceedings has been adopted by the appellees. As to the judgments in the District Court, they are no foundation for the Orphans Court to proceed upon. They are not authorized to carry into effect, the judgments of a common law court. The proper mode to enforce them, is to take out executions, there.
    
      Ewing, for the appellees,
    stated, that their reason for proceeding in the Orphans Court was, that on obtaining an order to sell E. Fe-biger’s real-estate; \in January, 1819, the appellant and T. Bradford, as his surety, gave a bond, with' condition to pay over the proceeds in such manner as the Orphans’ Court should decree, and owing, to the insolvency of the appellant, their object was to resort'to the surety for the amount recovered. He alleged that the accounts of, Mr. Flintham had been in the Orphans’ Court; that auditors, had been appointed to settle them, that they had stated an account, and returned it to the Orphans’ Court, before the decrees in these cases were made, and suggesting diminution of the record, prayed the court to award a certiorari, to cause them to be returned.
    The coup.t therefore awarded a certiorari to the Orphans’ Court.
    On the return of the certiorari, sundry papers were sent up with it, among which, were the accounts suggested by the counsel for the appellees. It now appeared, that the accounts of the appellant as administrator of E. Febiger, came before the Orphans’ Court, and were confirmed nisi, on the 19th- 'March, 1821. But on the 22d of the same month, they were referred to auditors, appointed by the court, on the petition of the heirs'of Capt. Carson, who had been entitled to one of the distributive shares; and that the accounts were before the auditors at the time of the 'decree of the Orphans’ Court above mentioned. On the 18th May, 1821, the auditors made a report, which was filed in the Orphans’ Court, on which, that court decreed a larger sum to the heirs of Capt. Carson, than had been decreed to the appellees. The appellees, however, made no objection to the accounts, as originally settled by the appellant,' but acquiesced; and it appeared,, that all parties were content with Mr. Ffintham’s settlement, except the heirs of Capt. Carson.
    
    
      Bradford, now relinquished his original objection, but insisted that the decree was invalid, because, at the time that it took place, the accounts were before auditors, and it was out of the power, of the court to act upon them, till they had been reported. The accounts had been confirmed nisi : and when objections were made on the part of one of the heirs, the whole confirmation was cancel-led, and the accounts were removed from the controul of the court, into the custody and power of the auditors.' They could not be at the same time before the court, and another tribunal possessing a distinct jurisdiction. Besides, the Orphans’ Court are empowered by law, to make only one decree, ascertaining the sum to be distributed. The first section of the act of 19th April, 1794, Purd. Dig. 288, provides, that “ they are to order, and make just mid equal distribution of .what remaineth clear,” after payment of debts and expenses. This must be by one decree, embracing all the heirs; not by separate decrees, for separate sums. Neither have they power to order the payment of costs recovered in a court of common law. That is a charge for which, the only remedy for the plaintiff is, by process out of the court in which judgment has. been recovered.
    
      Ewing for the appellees,
    answered, that the appellees had never withdrawn the accounts from the Orphans’ Court, nor objected to them as originally stated: and they ought not to be prejudiced by the acts of others, without their consent, nor had the administrator withdrawn them. If, therefore, the accounts were, strictly speaking, before the auditors, and not in court, ás respected the heirs of Capt. Carson, yet, as respected the appellees, they are to be considered as still remaining in court, subject to its controul, and they might certainly decree a balance which neither party, disputed. There is nothing in the act of 1794, to prevent the court from making separate decrees, from time to time, as circumstances may require, in favour of the different heirs of an intestate. ' •
   The opinion of the court was delivered by

TilghmAN, C. J.

As these two cases are the same in principle, they may be decided together. Wm. Flintham the appellant, is the administrator of the goods, &c. of Elizabeth Febiger, deceased, and the appellees Forsythe and wife, and L’ Amy and wife, obtained a decree, in the Orphan’s Court of Philadelphia, for a certain sum of money,' being the distributive share of the estate of the said E. Febiger, to which Mrs. Forsythe and Mrs: L’Amy were entitled. The first objection to the decree, was, that the Orphans’ Court had no jurisdiction, because the account settled by the administrator before the Register, was never brought before the Orphans’ Court. This objection has been abandoned, in consequence of a certiorari, by virtue of which, sundry papers were sent up to (his court, among which, is the account in question, and it appears that it was before the Orphans’ Court when they made their decree. It was then.objected, that the decree was irregular, because it was made while the administrator’s account was before auditors* to whom it had been referred by the court. To this it was answered, and, we think* satisfactorily, that the appellees never desired the account to be referred to auditors, being content with the settlement made before the Register; neither did the administrator desire it. But it was referred to auditors, at the request of some of the other heirs.of Mrs. Febiger. The ap-pellees brought suit in the District Court of the City and County of Philadelphia, against the administrator, and obtained a'verdict and judgment, for the amount due to them respectively, on the account as settled before the Register. The Orphans’ Court, therefore, had a right to decree in favour of the appellees, according to the settled account, which was- undisputed by either party. The appellant' could suffer no injury,, as this court would have rectified any error which he could show in the account. But in one respect, the Orphans’ Court went too far, for they decreed that the administrator should pay the costs of the suit in the District Court. 'In this we think they were wrong, for they had nothing to do with that judgment. They had a right to decree on the account before them, and had no right to order payment of costs incurred in another court. It may be well enough to mention, that it appears to have been the object of the appellees, by their proceedings in the Orphans’ Court, not to obtain payment by the process of that court, but to enable themselves to recover on a bond, which the administrator had given, with security, by order of the court, when he had obtained permission to sell part of the real estate, the condition of which bond was, that the proceeds of sale should be paid, according to the decree of the Orphans’ Court — so that without a decree, there would.have been difficulty in recovering on the bond. Upon the Whole, it is our opinion, that the decree of the Orphans’ Court should be reversed, so far as it orders, that the administrator shall pay to the appellees, the costs of suit, in the District Court for the City and County of Philadelphia, to wit, the sum of 26 dollars and 50 cents, and that the residue of the said decree be affirmed.

Decree reversed as to the costs of suit, and affirmed as to the residue.  