
    Hise’s Estate.
    The supreme court takes cognizance of an appeal from the orphans’ court, as an appellate court strictly; and a decree will not be reversed unless upon exceptions taken in the court below. But under the act of the 14th of April, 1835, if it be apparent that injustice has been done to the appellant, the court has a discretionary power to hear and determine such appeals according to the right and justice of the case.
    - APPEAL from tbe decree of the orphans’ court of York county.
    Jacob Hise and John Lowman, administrators of John Hise, filed an account of their administration of the estate, to which exceptions were filed, and the same were referred to auditors, who made a report, to which exceptions were again filed; and the same were again referred to other auditors, who made a report, which was confirmed by the orphans’ court. From this decree Jacob Smith, who was security for the administrators in a recognizance conditioned for the faithful performance of their duty in making sale of the real estate, appealed; and in this court exceptions were filed to the account reported by the last auditors, which had not been made in the court below.
    The counsel for appellee, moved to quash the appeal, because the exceptions were not made in the court below.
    
      MClure, for appellant,
    contended that under the act of the 14th of April 1835, this court would* hear and determine the case de novo.
    
   The opinion of the Court was delivered by

Rogers, J.

Since the passageof the act of the 29th of March 1832, it has been repeatedly held, that the supreme court takes cognizance of appeals from the orphans’ court, as an appellate court strictly; and that a decree will not be reversed, but on an exception filed in the court from which the appeal is taken. And this is now the general rule. But the legislature, by a subsequent act, have vested in this court a discretionaiy power to hear and determine such appeals, according to the right and justice of the case. Under this section of the act of the 14th of April 1835, if it was apparent that injustice had been done to the appellant, we should feel ourselves bound to refer the accounts to auditors for further investigation, with proper directions. The appellant complains that the accountant intermingled the rents with the real and personal estate; that he has not distinguished, in the settlement, the proceeds of the respective real estates, sold by the order of the respective courts of York and Dauphin, and that he has charged the dower of the widow, in his administration account. This mode of stating the account cannot be defended, and if the interest of the appellant was, in any degree, endangered, we should certainly interfere in the manner directed by the act. But the appeal is taken by one of the sureties in the recognizance in the orphans’ court, conditioned that the administrators would account for the money arising from the real estate of the intestate, and pay over the proceeds to the persons legally entitled. The property was appraised by an inquest of partition held by the respective sheriffs of York and Dauphin, where it was situated, and was sold by an order of the courts of those counties, for the benefit of the heirs. The proceeding was under the act of the 2d of April 1814, which directs a sale of the real estate, by the administrator, when the heirs, on due notice, refuse to take it at the valuation. It has, therefore, no connection with the administration account, which concerns the personal estate, and so much of the real estate only, as may be sold by order of the court, for payment of debts. The sureties in the recognizance are neither parties nor privies, nor can their rights be affected by the decree. The administrator acts as a trustee for the heirs. Their remedy is by suit on the recognizance, and in that suit the defendants will be allowed to show, under the proper plea, that the condition of the recognizance has been performed, by payment, to those persons who may be legally entitled to receive the money, whether they be creditors or heirs.

Appeal quashed.  