
    [Philadelphia,
    December 28,1835.]
    METTS’ APPEAL
    The Orphans’ Court has not jurisdiction of an adversary claim against the estate of a decedent, where the estate is solvent; although the alleged creditors are children of the decedent.
    ' Appeal from the Orphans’ Court for the County of Philadelphia, in the case of the settlement of the accounts of George Metts, Executor of the Will of Barbara Metts, deceased.
    Adam Metts died about the year 1797, intestate, seized of a dwelling-house and lot of ground, situate in the Northern Liberties, of the City of Philadelphia, and leaving a widow and several minor children. His widow, Barbara Metts, remained in possession, and made some addition to the building. In the year 1827, it became necessary to occupy a great part of the lot for the purpose of a public street; and under the provision of the Act of Assembly, a jury was appointed by the Court of Quarter Sessions, who assessed the damages at 1400 dollars. On the return of the jury a commissioner was appointed to ascertain the liens upon the property, &c., who reported that the damages were payable to Barbara Metts. No exception having been made to this report, it was confirmed by the Qudrter Sessions, and the money was paid accordingly. Barbara Metts died in 1830, having by her last will and testament bequeathed the sum of 30 dollars to each of her -children, with the exception of her son, George Metts, to whom she gave all the residue of her estate, and whom she appointed executor.
    George Metts settled his accounts in 1831, in which he charged himself with the sum awarded for opening the streets, deducting a certain amount claimed by the ground landlord.
    
      In the Orphans’ Court, the accounts were referred to an auditor, who, after stating the circumstances concluded as follows:—
    “ The auditor is clearly of opinion that the use and occupation of the house and lot for so many years by Barbara Metts, was a family arrangement, acquiesced in by her children for her convenience and comfort; and that her enjoyment of the whole property was at least an equivalent for the improvements and repairs made, and the ground rent and taxes paid by her. That the children never lost the legal title to the property. That when their mother received the money in question, she was to be regarded as trustee for all interested; that her executor, in whose hands the fund now is, is to be considered also as a trustee, and that (the question of the testatrix’s interest in a 'third part being now at an end) distribution is to be made accordingly.”
    The report of the auditor having been confirmed by the Orphans’' Court, the Executor appealed to this Court.
    
      Arundel, for the appellant contended:
    1. That Ann Metts, was entitled, in her character of occupant, to receive the damages awarded by the jury, to her proper and absolute use; and, therefore, she was entitled to dispose of them by will or otherwise as she thought fit.
    
      2. That the decree or judgment of the Court of Quarter Sessions awarding the damages to Ann Metts, was conclusive upon the question of her absolute right to it.
    On this side were cited Purdon’s Digest, 726, {Act of 1802.) —Marsh v. Pier, (4 Raiole, 273.) — Kessler v. Kessler, (2 Watts, 323.)
    
      Campbell and Isaac Norris for the appellees.
    This is an attempt by one of several children to get possession of an undue proportion of the common property. The widow, it is true, occupied the whole of the real estate in question, from the time of the death of her husband, until it was taken for the street ; but it was in pursuance of a family arrangement, and as guardian, or trustee for her minor children. As a mere occupant, she could not have been entitled to damages under the Act of 1802.
    [Rogers, J. — How could you enforce your claim in the Orphans’ Court?}
    
    We claimed as creditors of Mrs. Metts’ estate.
    
      [Rogers, J. — But your claim was disputed; and it is not easy to see that the Orphans’ Court, or an auditor had any jurisdiction in such case.]
    It is a common practice here to refer all questions arising upon the accounts of an executor or administrator to an auditor, who hears and decides as well upon claims of creditors, as upon those of distributees, subject to the control of the Orphans’ Court, who may direct an issue for the trial of disputed facts.
    [Kennedy, J. — There is no authority for the practice, except in the case of an insolvent estate, for which there is a special provision made by the Act of 1794.] ,
    
      W. M. Meredith, in reply, was stopped by the court; whose opinion was delivered by
   Rogers, J.

The account of the executor, exhibits a balance in his hands of 1038 dollars 56 cents; and the only question is, as to the distribution of this fund. And this would seem to present a case of but little difficult}', as there can be no doubt, that after debts and the necessary expenses of settling the estate are paid, the surplus must be paid as is directed in the testator’s will. But the appellees, say, and so the Orphans’ Court has decreed, that they are entitled to the balance in the hands of the executor, because,, the testatrix in her life time, received from the treasury of the County of Philadelphia, by the hands of her son and agent George Metts, the sum of 1400 dollars for damages in opening Juliana street, through property occupied by her, That at the time of her death, in September, 1830, this money was still in the hands of her son, George Metts, who was appointed her executor: that the property, for the injury to which these damages were received, belonged equally to the ten children of Adam Metts, and that the money was received in trust for their benefit. Admitting the facts to be as stated, was it competent for the Orphans’ Court to make a decree distributing the assets equally among the children of Adam Metts 1 And we are clearly of the opinion, it was not.

If Barbara Metts received the money as is alleged, not in her own right solely, but as a trustee for her children, it was so much money had and received for their use, and this would make them creditors of their mother, for the amount of their respective shares, for which an action for money had and received would lie. But if, as has been supposed, George Metts was a trustee for them, then the act of Assembly gives them a remedy, by a more summary proceeding in the Court of Common Pleas. But in neither view of the case have the Orphans’ Court authority to disregard the injunctions of the will, and make a decree such as the present.

It must be recollected, that the estate is solvent, and of course, is not embraced by the 14th section of the act of the 19th April, 1794, which relates to cases where there are not assets sufficient to pay bonds, specialties, and other-debts. This section was intended for the security of executors and administrators, but we do not understand that in this case, the executor claims the benefit of this provision, or that auditors were appointed under that section. ■

But this does not leave the appellees without an adequate remedy, as has been before intimated. The executor is responsible for the correct and proper administration of the estate, and if he thinks proper to prefer legacies to debts, it is a devastavit for which he is personally liable. It is all important to the administration of justice, that the jurisdiction of the respective courts should be kept separate and distinct; but it is obvious, that if such a course of proceedure should be permitted, it would interfere with the trial by jury, to the benefits of which .the executor, as well as the creditor is entitled. We wish it to be understood, that we give no opinion on what may be considered the merits of the case, but shall leave these questions to be determined where they properly arise.

Decree of the Orphans’ Court distributing the balance among the ten children of Adam Metts reversed. The balance to be paid by the executor as is directed by. the will, upon the legatees giving security, &c. according to law. The record remanded to the Orphans’ Court, to carry this decree into execution.  