
    BALLIET’S APPEAL.
    Where a guardian has sold the real estate for education and maintenance of the ward, the Court will not years afterwards set aside the sale on the ground that the appointment of the guardian was void.
    The Orphans’Court of the County in which the land is sitaated has jurisdiction to decree a sale thereof.
    Appeal from the Orphans’ Court of Carbon County. No. 134 July Term, 1872.
    The facts are set forth in the opinion of the Orphans’ Court, which was as follows per:
    Dreiier, P. J.
    Solomon Balliet, a resident of Schuylkill County, died there Intestate, in the year 1858, leaving to survive him a widow and four tíhildren, aged respectively as follows: Mary Jane, 10 years; William, 8 years; John, 6 years; and Esba, 4 years-The widow and children have continued to reside in Schuylkill County from the time of the father’s •death. Solomon Balliet, at the time of his decease, owned a town lot in the Borough of East Mauch Chunk, Carbon County.
    
      On the 7th June, 1861, the Orphans’. Court of Carbon County, on the petition of Mary Jane Thompson, a cousin of the minors, appointed Thomas Nuehner, of East Maueh Chunk, guardian of William, John and Esba. There was no appointment for Mary Jane. There was never any application made to the Orphans’ Court of Schuylkill County for the appointment of a guardian for either of the minors. We are not advised whether administration was ever granted upon the estate of Solomon, or whether he had an estate other than the aforesaid town lot.
    On 30th September, 1861, Thomas Nuehner, styling himself “guardian of the estate of John Balliet, Esba Balliet, William Balliet, and Mary Jane Balliet, minor children of Solomon Balliet, deceased,” presented a petition to this Court setting forth that the minors had no personal estate for their maintenance and education; that they had the town lot in East Maueh Chunk, and praying the Court to authorize a sale by him of the same for their maintenance and education. Upon this petition the Court directed a sale by the guardian, who sold the same on the 7th of November, 1861, to William B. Mack, for $325, and 'on the 3d of January, 1862, the sale was duly confirmed by the Court, and on the 11th of the same month the guardian made a 'deed to the purchaser. One-third of the purchase money was chargeable upon the premises for the benefit of the widow during life, and the purchaser'has regularly paid her the annual interest from the date of sale. The remaining two-thirds were paid to the guardian. Mary Jane attained her majority in August, 1869, and in September of the same year the guardian paid her $56.68, as her share.
    On the 6th of October, 1869, the guardian filed in the Register’s office an account stated “Eirst account of Thomas Nuehner, guardian of minor children of Solomon Balliet, deceased.” He • charges himself with the two-thirds of purchase money, and $80 interest, and takes credit for sundry items of expenses, and for the $56.68 paid to Mary Jane; resulting in a balance in his hands of $170.05. A certified copy of this account was filed in this Court and was confirmed nisi January 4,1870.
    On the 31st of July, 1871, the guardian filed another account in- the Register’s office, called “The second and final account,” in which, as stated in the -petition in the present proceeding, he charged himself with the balance on the former account, and $17.00 interest, and took credit for sundry items of expenses, showing a balance in his hands of $155.05. No further action ■seems to have been taken in this account.
    William Balliet attained his majority on the 3d day of April, 1871, and on the 14th of September, 1871, presented his petition to this Court,, setting forth substantially the foregoing facts, and alleging that the town lot in East Mauch Chunk was worth $600 to $700; that Kuehner procured his appointment as guardian without the knowledge or consent of the minors or their mother, and sold' the property for a sum greatly below its value; that he is advised the Orphans’ Court of Carbon County had not jurisdiction to appoint a guardian, or to order a sale of the land by such guardian; that the accounts are not made and filed according to law ; should have been filed in the Orphans’ Court, and not in the Register’s office; are joint when they should have been several; that the guardian having sold the property for education and maintenance of minors, and never having applied any of the money to that purpose, had forfeited all claim to compensation and for fees and charges paid by him, and should be charged with the full value of said property, if such sale be legal and valid, and that the costs and fe.es charged in the accounts are excessive, illegal, and should not be allowed, and praying the Court to afford him “such redress in the premises as by law he may be entitled to, either by the issuing of a citation to the said guardian to settle his accounts in a proper maimer, or by the appointment of an auditor to take the testimony and report the facts, with power if necessary to resettle and adjust said accounts if it shall appear that said accounts are not properly filed.” The Court appointed John D. Bertolette, Esq., auditor, to take the testimony and report the facts. The auditor having made his report, the petitioner’s counsel upon the argument, now asks us to set aside the sale for want of jurisdiction in this Court; to either appoint a guardian or to decree a sale upon the petition of such guardian; and we are referred to the act of 29th of March, 1832, section 5 which provides that the Orphans’ Court -of each County shall have the care of the persons of minors resi■dent witliin such County, and of their estates; and to the 32d sec. of the same act, which provides that where the real estate is-situate in another County, and the Orphans’ Court, which possesses jurisdiction over the accounts of such executor, administrator or guardian, shall be satisfied of the propriety of-a sale, it shall-be lawful for such Court to make a decree authorizing such executor, administrator or guardian, to raise so much money as said Court may think necessary from the real estate in such other County, and thereupon it shall be the duty of the Orphans’ Court of the County wherein the real estate is situate'd, upon the petition of such executor, administrator or guardian, to make an order for the sale, &c.
    "While it is true that the Orphans’ Court of the County where the minor resides has the care of his person and estate, yet the 32d sect, of the act referred to gives the Court of the County wherein the land is situate, jurisdiction to decree the sale. The Orphans’ Court of Schuylkill County, even if the guardian had been appointed there, could not order a sale of land in Carbon. It could only authorize the raising of a certain amount of money, and the Orphans’ Court of Carbon must still have made the decree of sale. "We think it clear that this Court had jurisdiction cf the land, the subject of sale, and although an error may have been committed in the appointment of the guardian, we must not confound an error in that matter with the jurisdiction in the matter of the sale.
    In Torrance vs.’ Torrance, 3 P. F. S., 505, where the sale was made on the petition of the executor for the payment of a judgment against him for a legacy charged on the land, and for other legacies charged, the sale was held to be void for want of jurisdiction apparent on the face of .the petition, as it was not a sale for payment of the testator’s debts, nor for the payment of legacies, for neither the estate nor the person charged was set forth, while the petitioner, the executor had no authority to make application for the sale for payment of legacies charged. Justice Agnew, on page 512, says, “had the application been to sell the testator’s estate for his own debts, their existence might be presumed ; or had it been to sell the devisee’s estate for the payment of legacies charged upon it, the wavt of authority in the executor to petition, would have been but an irregularity.
    In the case under consideration thé petition for the sale sets forth facts, giving the Court jurisdiction to sell for the maintenance and education of the minors, and the purchaser looking at the petition would find nothing in it to lead him to suppose the guardian had not been appointed by the proper Court. But it is argued that the petition for the appointment of the guardian shows want of jurisdiction, as it describes the minors as “minor children of Solomon Balliet, deceased, late of the County of Scnuylkill.” But this description is not incompatible with the possibility that Solomon Balliet might have moved into Carbon County, and resided here at the time of his death, or that the children might have actually been residents of this County at the time of appointment of guardian; and a purchaser, if bound to go so far in his examination of the record, might well presume such to be the case in view of the fact that the appointment was made by this Court.
    Being of opinion that this Court had jurisdiction of the subject of sale, we do not feel disposed to attempt to revoke a decree made ten years ago. The testimony returned -by the auditor shows the land sold for its full market value, and there is nothing in the evidence to show fraud on the part of either purchaser or guardian. Indeed we have no power to set aside this sale. “The Court cannot set aside a sale five years after confirmation, and a decree to that effect is a nullityLockhart vs. John, 7 Barr, 137.
    As to Mary Jane, she is not here complaining, and if she has not ratified the acts of the guardian and the sale by the receipt of the money, and the sale should be held void as to her because of no appointment of the guardian for her, she has her remedy in another forum.
    As to the accounts filed by the guardian in the Register’s office, the first one was filed before the petitioner attained his majority, and it cannot affect him, and the balance in hands of guardian, as shown by that account, cannot be a basis for the settlement of his account as guardian of the petitioner. "We are compelled to say that this account is badly stated. It does not show of whom the accountant is guardian, nor that it is the final account after his ward had attained the age of twenty-one years; Clearly as to all the wards, excepting Mary Jane, who was then twenty-one, the Register’s office was not the place to file the account. The account is also bad in that it is joint, when it should show the condition of the estate of each ward separately. The account might be so stated as to show this, without a separate and distinct account for each, where the wards are equally interested, as in this case, in the trust fund. As to the second account, we have not that before us, and therefore have nothing to do with' it. As we understand the report of the auditor it was filed in the Register’s office and no further action -had upon it.
    And now, to wit, June 18th, 1872, it is ordered and directed that Thomas Nuehner, guardian of William Balliet, do settle and file in this Court his account as such guardian, within thirty days from this date. And it is further ordered that the guardian pay the auditor’s fees and clerk’s fees in this proceeding out of the moneys in his hands belonging to said William Balliet, and that he have credit therefor in his account. And it is further ordered that each party pay the costs and fees of his own witnesses. The costs are placed on the petitioner for the reasons that he charged that the guardian procured his own appointment without the knowledge or consent of himself or his mother, and sold the property for one-half its value, thus imputing fraud and unfair dealings to the guardian, when the evidence shows clearly, that the guardian accepted the trust reluctantly, at the request and urgent solicitation of the mother and her friends, and the land was sold at its full value.
    The guardian ought to have settled his account in proper form, upon the arrival of his ward at the age of twenty-one years, and not having done so, we leave him to pay his own witnesses.
    William Balliet then appealed to the Supremé Court assigning the following errors:
    1. The Court erred in not decreeing that the Orphans’ Court of Schuylkill'County, where the minors all resided, and continued to reside, as proved by the'testimony in this ease, had sole jurisdiction to appoint guardians for their persons and estate, and therefore the appointment of Thomas Kuehner, as such guardian, by the Orphans’ Court of Carbon County, was void for want of jurisdiction.
    2. The Court erred in not decreeing that the petition for the appointment of the guardian shows want of jurisdiction on its face in the Orphans’ Court of Carbon County, as it describes the minors as “minor children of Solomon Balliet, deceased, late of the County of Schuylkill.
    3. The fact being established by uncontradicted proof, that Solomon Balliet, at the time of his death, resided in Schuylkill County, and that his children have resided there ever since, the Court erred in not decreeing that the order of sale made by the Orphans’ Court of Carbon County was void for want of jurisdiction, no decree having been made by 'the Orphans’ Court of Schuylkill County authorizing the raising of a certain sum of money in the County of Carbon, where the real estate was situated.
    4. The Court erred in decreeing as follows:
    “While it is true that the Orphans Court of the County where the minor resides has the care of his person and estate, yet the 32d sec. of the act referred to gives the Court of the County wherein the land is situate, jurisdiction to decree the sale. The Orphans’ Court of Schuylkill County, even if the guardian had been appointed there, could not order a sale of the land in Carbon. It could only authorize the raising of a certain.amount of money, and the Orphans’ Court of Carbon must still have made the decree of sale. We think it clear that this Court had jurisdiction of the land, the subject of sale, and although an error may have been committed in the appointment of a guardian, w;e must not confound an error in that matter with the jurisdiction in the matter of sale.”
    5. The Court erred in decreeing as follows: “Indeed we have no power to set aside this sale. The Court cannot set aside a sale five years after confirmation, and a decree to that effect is a nullity.
    6. The Court erred in decreeing that the guardian of William Balliet pay the auditor’s fees and clerk’s fees in this proceeding out of any moneys in his hands belonging to William Balliet, and that William Balliet pay the costs and fees of his own witnesses.
    7. The Court erred in not decreeing that the two accounts filed by Thomas Kuehner, guardian, in the Register’s office should be thrown out and disallowed at the cost and expense Of said alleged guardian.
    
      Allen Craig, Esq., for appellant
    argued, that the appointment of a guardian was void, as the minor did not live in the County; and this being so, all subsequent proceedings based upon such appointment, were invalid ; and cited Packer’s Estate, 1 Leg. Gaz. Rep. 5; Act March 29, 1832, P. L. 191; McPherson vs. Cunliff, 11 S. & R. 431; Pittsburg vs. Walter, 69 Pa. 368.
    
      Charles Albright, Esq., contra
    
    argued, -that if the appointment of the guardian was erroñeous, an appeal should have been taken within the time limited; but as this was not done in time, it can not be attacked collaterally, nor can the sale be objected to after being confirmed; and cited Haslage’s Appeal, 37 Pa. 440; Snevily vs. Wagner, 8 Pa. 396; McPherson vs. Cunliff, 11 S. & R. 422; Fox vs. Winters, 4 P. 174; Painter vs. Henderson, 7 Pa. 48; Lockart vs. John, 7 Pa. 137; Simmonds Appeal, 19 Pa. 439; Torrance vs. Torrance, 53 Pa. 505; Singerly vs. Swain, 33 Pa. 102.
   The Supreme Court affirmed the decree of the Orphans’ Court .as follows:

Per Curiam.

And now March 24, 1873, Decree of Orphans’ Court affirmed.  