
    McGettrick’s Appeal.
    An auditor appointed by tbe Orphans’ Court to distribute tbe proceeds of a sale of realty belonging to an intestate, among his heirs, has power to inquire into and to pass upon the validity of a deed whereby the share of one of said heirs in said realty is assigned to a stranger.
    May 3d 1881. Before Sharswood, O. J., Merour, Gordon, Paxson, Teunkey, Sterrett and Green, JJ. • .
    Appeal from a decree of the Orphans’ Court of Lancaster county, distributing the proceeds of the real estate of John McGrann, deceased. Of May Term 1881, No. 14.
    The material facts were as follows : — John McGrann died intestate, unmarried and without issue, leaving as one of his heirs-at-law a niece, Eleanor J. McGettrick. The real estate of the intestate was sold under an order of the Orphans’ Court of Lancaster county, by a trustee appointed for that purpose to distribute the proceeds. Before the auditor, the share of said Eleanor J. McGettrick was claimed by one Robert Taylor, under a deed executed by her to him for her interest in the decedent’s real estate, duly recorded in Lancaster county. Eleanor J. McGettrick claimed the same share, and alleged that the said deed to Taylor had been procured by him from her by fraud at a time when she was incapable of executing a deed by reason of intoxication, and that it was without consideration. The auditor reported, as a fact, “ that the grantor was intoxicated when sho signed the deed, and for several months before.” Taylor objected to the jurisdiction of the auditor to inquire into the validity of the recorded deed, and contended that if the grantor desired to attack it, she must do so by proper proceeding in another Court. The auditor reported on this point as follows: “ The auditor has been unable to find a single case where this point arose. All the cases say that the validity of a judgment cannot be attacked before an auditor for the purposes of distribution, unless, perhaps, when collusion is alleged between the debtor and the creditor, and subsequent creditors will be defrauded, ... In the appeal of the Second National Bank of Titusville, i Norris 531. the Supreme Court say: ‘ All the cases say that the mere fact that the debtor has been overreached, and a fraud perpetrated upon him by the creditor, gives no right to the other creditors to attack him collaterally'. . . . . In such cases the only person who can impeach the judgment is the defendant himself, and this must be done by a motion in the proper Gourt to open it.’’
    
    “ In the case before us, the only persons who can be affected by this deed are the grantor and grantee, and if any fraud has been practiced upon the grantor, or if the deed is voidable on account of the want of capacity to contract on the part of the grantor, or want of consideration, they must go into the proper Court to have it set aside.
    “The auditor is therefore of opinion that he has no jurisdiction in the matter, and awards this share to Robert Taylor.”
    Eleanor J. McGettrick filed exceptions to the report of the auditor, and subsequently presented to the Court a petition for an issue, and a trial by jury to determine the question of the validity of the said deed.
    The Court, in an opinion by Patterson, J., dismissed the exceptions, confirmed the report, and refused the issue prayed for on the ground that the exceptant not having asked at the audit for an issue, and having taken her chance before the auditor, was too late to demand an issue. The exceptant thereupon took this appeal, assigning for error the refusal to grant an issue, and the decree dismissing the exceptions and confirming the auditor’s report. '
    
      
      D. J. EsKleman (with him B. F. EsKleman), for the appellant.
    The auditor found as a fact that the deed had been executed under circumstances which would render it voidable ; but both he and the Court were of the opinion that, like a judgment, the deed could not be attacked collaterally before the auditor in a proceeding for distribution. But there is no analogy between a deed and a judgment. The fact that the deed was recorded in the recorder’s office does not make it a record in the sense that a judgment is a record. The Orphans’ Court has jurisdiction in the distribution of a decedent’s estate to ascertain the parties who are entitled to share therein. The power to decide all questions essential to distribution is incident to the power to distribute, and the validity of this deed was such a question. A deed inter gya/rtes has no more sanctity than any other contract under seal, 'and it may be impeached in any Court in which it is set up as evidence of a claim : Whiteside v. Whiteside, 8 Harris 474 ; Rice’s Appeal, 29 P. F. Smith 182; Campbell’s Appeal, 30 Id. 315; Hammett’s Appeal, 2 Nor. 394; Otterson v. Gallagher, 7 Id. 355; Jackson v. Summerville, 1 Ilar. 359 ; Mitchell v. Kintzer, 5 Barr 216 ; Rankin v. Porter, 7 Watts 387; Bixler v. Kunkel, 17 S. & R. 298; Mechling’s Appeal, 2 Grant 157; 1 Story’s Eq. Jur. § 238.
    This case is expressly ruled by Dundas’s Appeal, 23 P. F. Smith 474, where the facts were substantially identical.
    But if the auditor had no jurisdiction to inquire into the validity of the deed, the Court should have granted our application for an issue.
    
      Wm. Aug. Atlee, for the appellee.
    Dundas’s Appeal decides only that the Orphans’ Court has power on petition for payment of a legacy to examino into the validity of an alleged transfer ; it does not decide that an auditor to distribute a fund has such power. The proceeding was in the nature of a bill in equity, not an audit for distribution. In McMurray and wife v. Davis, o W. N. C. 305, Dundas’s Appeal is commented upon, and it is there held that a bill in equity is the most appropriate remedy, if not the only one, in such a case as this. The contest here is not between an executor or administrator and a distributee; it is as to who owned an interest in certain land, and was entitled to the proceeds of the sale of it. The jurisdiction of the Orphans’ Court by Act of June 16,1836, § 19, Purd. Dig. 1104, pi. 8, is extended to the partition of the real estate of intestates among the heirs; it is nowhere extended to the investigation into the validity of a deed executed by an heir to an outside party. None of the cases cited by the appellant decide that it is so extended. Rice’s Appeal, 29 P. F. Smith 182, and Campbell’s Appeal, 30 Id. 315, are both cases in equity. It is settled that an auditor cannot inquire into the validity of a judgment, and we contend that, by analogy, he cannot set aside a deed. Such a result can only be obtained by a bill in equity in the Common Pleas, or if the Orphans’ Court has concurrent jurisdiction, by a formal proceeding by petition, answer, and proofs.
    May 23d 1881.
   Mr. Justice Green

delivered the opinion of the Court,

In this case the proceeds of the sale, under an order of the Orphans’ Court, of the real estate of an intestate, were in the hands of the trustee for distribution. One of the claimants to the fund was a niece of the intestate. Her share of the proceeds was claimed by the appellee, Robert Taylor, by virtue of a deed to him from the appellant for her interest in the lands sold. This deed was attacked as having been obtained fraudulently from the appellant and as being consequently void. The auditor held that he had no jurisdiction to inquire into the validity of the deed, and for that reason declined to consider the merits of the controversy, and awarded the share of the appellant to her grantee. On exceptions taken to this action of the auditor, an application was made to the Orphans’ Court for an issue to try the validity of the deed to Taylor, but the Court refused the issue, holding that the appellant was bound by the action-of the auditor, and that the latter had decided adversely to her claim.

We are of opinion that the auditor was mistaken in supposing he had no jurisdiction to inquire into the validity of the deed, and that the learned judge of the Orphans’ Court was in error in dismissing the appellant’s exceptions to the report of the auditor. It is, of course, undisputed that the Orphans’ Court has exclusive jurisdiction to distribute the estates of decedents among those entitled to them. Such distribution necessarily includes the power and the duty to ascertain the persons to whom distribution must be made. When the share of one who is apparently entitled is claimed by another, such claim must be established in the proceeding for distribution, and as it must be there established, so it may be there impugned. There is no occasion to resort to any other court, or to any other proceeding, to determine the validity of the claim, as the Orphans’ Court has full power and adequate procedure to dispose of the controversy. If a deed or other instrument is set up as a muniment of title for the interest of a distributee, an attack upon its validity is in no respect an impeachment of it in a collateral proceeding. A deed is not a proceeding nor the result of one. It is not a judgment of a court, nor a decree of any species of tribunal. It is but an instrument vni&r partes, and has no higher sanction than can be given to it by the act of the parties. As such it must abide the tests of all voluntary contracts. It is therefore as liable to impeachment as any other form of contractual relation, and is necessarily subject to be invalidated whenever it is proffered to a tribunal as a basis of a right. These considerations are fundamental, and the authorities which prove that the judgment of a Court cannot be impeached collaterally, and is therefore obligatory upon an auditor, have no application.

Decree reversed ■ and record remitted, with directions to the Court below to re-commit the case to the auditor for further proceeding before him, the costs of this appeal to be paid by the appellee. ■  