
    Fogelsonger against Somerville and others.
    Monday, October.
    When the estate of an intestate lias been valued in the manner prescribed by the intestate laws, and the husband of a female heir agrees to take it at the valuation, the Orphan’s Court have no power to vest in him, for his own use, his wife’s share of the estate; audit* the Court dein fee* giving rethl payment” other3 heirs, the depects his wife’s her death, ?nd without having done any thing to u^hcíthaíé descends'to her heirs. A bonaJide purchaser for a valuable consideration band, is in no tjon^thalfdie husband himself. It seems, however, that the husband may hold, in his own right, those parts of the estate for which he has paid, or secured to pay, the appraised value to the other heirs.
    In Error.
    ON the trial of this ejectment in the Common Pleas of Franklin county, a special verdict was found, of which the following is the substance :
    
      William Strain died intestate, seised in fee of the premises in dispute in September, 1794, leaving a widow and six children. On the petition of the eldest son, the Orphan’s Court of Franklin county awarded an inquest for the partition and valuation of the real estate of the intestate, who divided it into two parts; one containing 132 acres 149 perches, which was valued at seventy-five dollars an acre; the other, containing 162 acres, 146 perches, which was valued at twenty-five dollars 87 cents an acre. Those of the children of the intestate who were entitled by law to priority of choice, having neglected or refused to take any part of the property the valuation, William Sponsler, who had married Isabella Strain, one of the daughters of the intestate, agreed, to take one of the purparts at the valuation, and the Court decreed it to him “ as his freehold, to him and his heirs and assigns forever; he entering into recognisance, and giving bail for the payment of the respective shares of the other heirs.” The recognisance was duly entered into on the same day. • Sometime afterwards, Isabella, the wife of William Sponsler, A, who had never had issue, died, and afterwards, on the 24th November, 1817, William Sponsler, conveyed the premises fora valuable consideration to David Fogelsonger, the de00 feridant.
    This ejectment was brought by David Somerville and fane, his vrife, and John Henderson ánd-Margaret, bis wife, in right of their respective wives, who were daughters of the intestate, to recover their interest in their sister Isabellas share of the real estate of her late father.
    The opinion of the Court below was, that the Orphan’s £ourt hac¡ no p0Wer j-q vest jn t[je husband the real estate of tjje wife: that his acceptance oF a purpart in' right of his wire could give him no greater estate than by law he had before, as tenant by the curtesy ; that the circumstance of the defendant being a bona fide purchaser, was of no consequence, as the foundation of the title was a record to which he had access, and of which he was bound to take notice, and that, therefore, the plaintiffs were entitled to recover.
    This opinion, a copy of which was returned with the record, came up, on a writ of error, for revision by this Court. .
    Brown, for the plaintiff in error,
    did not assert the right of the Orphan’s Court to assign the estate of the wife to the husband, but contended that it was the duty of the plaintiffs to see that every thing was regularly and legally conducted; and that having stood by and submitted to the decree of the Orphan’s Court, they should not be permitted to dispute the title of an innocent purchaser, who relied on the validity of that decree. This doctrine is conformable to the principles by which Courts of Chancery are uniformly governed. Finch v. Newman, 2 Fern. 216. Sorrell v. Carpenter, 2 P. PFm. 482. PForseley v. Earl of Scarborough, 3 Atk. 392. Preston v. Tubbin, 1 Fern. 286. Harvey v. Montague, 1 Fern, 57.
    
    But, however irregular the decree of the Orphan’s Court may have been, this is not the proper mode of attacking it. By the 9th section of the act of 27th March, 1713, an appeal is given to the Supreme Court from a definitive decree of the Orphan’s Court, which we contend cannot be impeached except in the manner pointed out by law. Until reversal it is valid. This was the course pursued in the case of Elliot v. Elliot, 5 Binn. 1. Though in the case of Messinger v. Kintner, 4 Binn. 97., the right of questioning the validity of proceedings in the Orphan’s Court, collaterally in an ejectment, was recognised by a majority of the Court, it was put by the Chief Justice entirely upon the ground of practice and the authority of Lar rimer’s Lessee v. Irwin, decided in 1798, by C. J. M‘Kean and Judge Smith; and great doubts were expressed by him as to its propriety. Judge Yeates, on the contrary, asserts the general proposition, that a decree of the Orphan’s Court can only be reversed by appeal, and not col- . 1 ,, . . ... , , , , , . ,. . laterally m another suit, although he thought the rule did not apply to the case then before the Court; as the plaintiff, at the time the decree was made was a minor, and was not, either by himself or his guardians, a party before the Court. In Snyder’s Lessee v. Snyder, 6 Binn. 4?8S. the same point arose j and while the Chief J ustice, and a majority of the Court, adhered to their opinion in the case just mentioned, exclusively for the reasons there given, acknowledging, however, the inconveniences and disadvantages of the doctrine, Judge Yeates strenuously held to his former opinion, and directly questioned the authority of Larrimer's Lessee v. Irwin. The law on this subject, therefore, cannot be considered as so firmly settled that it ought not to be shaken. As it stands, it is fraught with many evils, and great benefits would flow from the establishment of a different rule.
    Chambers, for the defendants in error.
    The wife of William Sponsler was entitled to a certain proportion of her father’s estate, and has done nothing to divest herself of it. This proportion, for which her husband paid nothing, we claim. With respect to those parts for which he paid the other heirs, we make no demand. The only question, then, is, whether it has been divested by the decree of the Orphan’s Court, by which it wasgiven'to her husband in fee. The Orphan’s Court is a Court of limited jurisdiction, invested with certain powers for specified purposes, and has no control over land, further than is given to it by act of assembly. Nothing, therefore, can be deduced from the decisions of Courts of Chancery at all applicable to this subject. The proceedings of the Orphan’s Court are.an encroachment on the common law, and, therefore, not to be extended beyond the express powers given by the statute. Johnson v. Haines’ Lessee, 4 Dali. 64. 66. It is barely authorised to assign to each child the proportion to which he is entitled by the express provisions of the law. Act of 19th April, 1794, sect. 22. Purd. Dig. 293. No mention whatever is made in the act of assembly of the husband of a female heir,'and when, he takes his wife’s share, he takes it in her right, and it remains her estate. Blocher v. Carmony, 1 Serg. Raxvle, 460. The Orphan’s Court cannot transfer real estate, nor commute it into' personal property further than they are expressly permitted by act of assembly, which, when all the heirs refuse to take the land at the valuation, authorises a sale. The Or-P^an*s Court having manifestly exceeded its powers, the only remaining question is, whether the validity of its decree may be enquired into in this suit. This question is no longer open. Whatever may be the inconveniences attending the doctrine, it is now fully settled by the cases of Messinger v. Kintner, and Snyder's Lessee v. Snyder, that the proceedings in the Orphan’s Court may be examined in an ejectment. If the defendant loses an estate for which he has paid a valuable consideration, the fault lies with himself. He purchased with full notice of the proceedings in the Orphan’s Court, without which he could not máke his title, and he was bound to know that the y could not be supported.
   Tilghman C. J.

delivered the opinion of the Court.

After stating the facts, he proceeded as follows:

The plaintiffs below contend, that Isabella was entitled to a child’s part of her father, William. Strain's, estate of which part her husband, William Sponsler, was seised in her right, notwithstanding the order of the Orphan’s Court, by which it was given to him, his heirs and assigns. But the plaintiffs make no claim to any part of the land assigned by the Orphan’s Court to Sponsler, beyond that which descended to his wife as one of the heirs of her father ; so that there is no attempt to disturb his title to any land which he has paid for. The only question is, therefore, whether the Orphan’s Court had power to vest in .Sponsler, for his own use, his wife’s estate, which descended to her from her father. If the Court had no such power, the plaintiffs are entitled to recover ; because, in that case, the right of Sponsler ceased on the death of his wife. He would not be entitled to an estate by the curtesey, never having had issue by his wife.

By the act of 19th April, 1794, the real estate of an'intestate is to be equally divided among his children ; and the Orphan’s Court is authorised to have partition made ; but if the estate will not bear a division into as many parts as there are children, it ik to be divided into as many parts as shall be convenient, which are to be appraised, and allotted by the Court to some of the children, in the manner prescribed by the act. In such cases, some of the children will have no land, and those who take the land are to pay, or secure to be paid, to them, their proportion of the appraised value. There is not a word in this act of any allotment of land to the has-band of a daughter of an intestate—the husband is not even , , , , mentioned. Still, when the Court has ordered the estate to be vested in the husband, and he has paid, or.secured to be paid, to the children fother than his wife J their proportions of the appraised value, there will be neither injustice nor inconvenience in his holding, in his own right, as much as he has paid for. But there would be manifest injustice in taking from the wife, and vesting in the husband, her portion of her father’s estate for which he has paid nothing. There is not a trace of any such intent to be found in the act of assembly ; anc! it is surprising that the Orphan’s Court should have conceived they had power to make this transfer of the wife’s estate. It is not the first time we have had this subject before us. I think it was decided, in principle, in the case of Blocher v. Carmony, (1 Serg. & Rawle, 460.) There, it is true, the Orphan’s Court had ordered the estate to the husband, although he was to pay nothing to the other children— it was something stronger than the case before us. But as to that part of the land for which Sponsler paid nothing (the pai-t which belonged to his wife) the present case, and Blocher v. Carmony, are, in principle, the same. The defendant, Fogelsonger, although a purchaser for valuable consideration, can be in no better condition than Sponsler, from whom he purchased. The title was to be found among the records of Orphan’s Court, of which he was bound to take notice. Indeed Sponsler had no other title to shew. The plaintiff in error has objected to the mode of annulling a decree of the Orphan’s Court, in an action of ejectment; but I consider the law on that subject to be settled by long practice, and express decisions. The cases of Messinger v. Kintner, (4 Bin. 97.) and Snyder v. Snyder, (6 Bin. 490.) are directly in point.

, I am of opinion, that there is no error in this record, and .therefore, the judgment should be affirmed.

Judgment affirmed.  