
    Thomas Adams, Sen., v. Thomas Adams, Jun., and others.
    Where a married woman, domiciled in Ohio, dies intestate, leaving children, and her surviving husband afterward obtains letters of administration upon her estate, from the orphan’s court of Pennsylvania, and by means thereof acquires possession of her personalty in that state, and there files his accounts and vouchers for settlement in the proper court, which aré referred to an auditor, and a report made thereon, to which the children and heirs of the deceased appear and file exceptions, a suit can not be maintained in this state, by such children and heirs of the intestate, for distribution of the money so held by the administrator, while the settlement account and exceptions are pending, and the amount for distribution is undetermined.
    In error to the court of common pleas of Jefferson county.
    Reserved in the district court.
    The petition filed in the court of common pleas, January 14; 1854, by the plaintiffs, defendants in error, contains the following statement of the original cause of action:
    That the plaintiffs are the children of Bersheba Hartly; that she married Thomas Adams, Sen., in 1802; that on the 20th of July, 1837, Bersheba died, leaving the plaintiffs, and the co-defendants of said Thomas, her heirs at law ; that, at the time of *her death, her residence and domicil were in Ohio, and the county of Jefforson ; that no letters of administration on her estate were granted in Ohio; that on the 4th of February, 1850, the said Thomas Adams, Sen., obtained letters of administration on said estate, from the register of wills for the city and county of Philadelphia, in the State of Pennsylvania; that by virtue of said letters, the said Thomas, Sen., on or about the 1st of August, 1853, received into his possession the sum of $8,000 of the estate of Bersheba ; that he has since converted that sum to his own use, and refuses to distribute among the heirs of Bersheba; that no debts were owing by Bersheba ; that the whole of the sum of $8,000 is distributable by law among her heirs.
    The plaintiffs then ask, that an account may be taken Of the moneys so received by said Thomas, Sen., and of the amount distributable bylaw to each of the heirs of Bersheba, and that a judgment may be rendered against him for that amount.
    
      To this petition the said Thomas Adams, Sen., demurred, and for causes, alleged that:
    1. The court has no jurisdiction of the subject of the action.
    2. The petition does not state facts sufficient to constitute a cause of action.
    h This demurrer was overruled; and the said Thomas, Sen., answered, that the money referred to in the petition, as money which came into his possession by virtue of letters of administration from the register of wills, in the city and county of Philadelphia, is money which was decreed to him by the circuit court for the eastern district of Pennsylvania, in the case of Packer v. Nixon. That he was entitled to said money by virtue of his rights as husband of Bersheba; that letters of administration were granted to him for his own benefit; that by virtue of said letters, he obtained possession of said fund, so decreed to him, for his own use and behoof.
    The answer denies that the money is distributable by law among the said plaintiffs, as claimed in the petition, and denies that plaintiffs are entitled to judgment.
    The answer then further avers, that on the 28th of March, 1853, said Thomas, Sen., filed his account, as administrator, in *the office of the register of wills, in Philadelphia; that the account was referred to an auditor, by the orphan’s court of said county, to settle and adjust; that notice was given of the filing and reference; that the plaintiffs in this suit appeared by their attorney, and presented their claims for the same money mentioned in their petition in this suit, and asked that it be distributed among them in the same manner prayed for in their petition in this suit; that the auditor reported adversely to their claim; that exceptions to his report were filed by them; that the exceptions were not sustained by the auditor; that his report was filed in the office of the clerk of the orphan’s court, and that said claim and said exceptions, at the date of the commencement of this suit, were and still are pending in said orphan’s court. And therefore the said Thomas, Sen., prayed judgment of the writ and petition, and that the same be quashed.
    At the October term, 1854, the cause was tried by the court, and judgment was rendered against the said Thomas, Sen., and in favor of the claimants, for their distributive shares. To this the plaintiff in error excepted.
    It is agreed between the parties, that the said plaintiffs were the children of Bersheba Adams; that she was married to Thomas Adams, Sen., in 1802; that she died July 20, 1837; that her coverture continued until that time, and that her said children are the issue of this marriage; that, at her death, Bersheba was domiciled in Ohio; that letters of administration were taken out by said Thomas, Sen., on her estate in Pennsylvania, and that no letters were taken out here; that the parties to the record in the orphan’s court in Philadelphia are the parties in this action; that the fund to be there distributed is the same fund which is here in controversy; and that said matters are still pending in the orphan’s court in Philadelphia.
    
      Bingham & Lloyd, for plaintiff in error, insisted:
    That the plaintiffs below can not maintain their action here during the pendency of the same matter in the orphan’s court of Philadelphia ; that the action here must necessarily abate. Bac. Abr., tit. Abatement, 28; Buffum v. Pelton, 17 Pick. 510; Webster v. Randal, 19 Ib. 13; Tracy v. Reed, 4 Blackf. 56; MeKensey v. Anderson, 4 Dana, 62; Atkinson v. State Bank, 5 Blackf. 84; Renner & Bussard v. Marshall, 1 Wheat. 215; Ex parte Balch, 3 McLean, 221; Judiciary Act of 1789; 2 Pet. 449; 3 Bouv. Inst. 128; 2 Hall, 454; 3 Wills, 308.
    The plaintiff in error can not be sued here and compelled to make distribution of the assets of the estate, before his account has been settled in that tribunal where his bond requires it to be done. 2 Kent. 516, see. 420; Archb. of Canterbury v. Tappan, 8 Barn. & Cress. 151.
    The decree of the surrogate, on the final settlement of the administrator’s account, is final, subject to an appeal to the chancellor, as to the payment of creditors, legatees, and next of kin, and concludes all parties. 2 Kent, 517, note c; Wright v. Trustees M. E. Church, 1 Hoff. Ch. 214, 215; 1 Wall & Larry, 293.
    
      Thomas Means, also for plaintiff in error, insisted:
    1. That he can not be required to account, except in the probate court.
    2. And that pending the settlement of his accounts in the jurisdiction from which he obtained his letters of administration, he is not liable to be compelled to account elsewhere. Mallet v. Dexter, 1 Curt. C. C. 178.
    
      
      B. S. Moodey and George W. McCook, for defendants in error:
    That another suit pending within the same jurisdiction may be pleaded in abatement is undoubtedly true. Whether the pendency of another suit in a foreign state abates an action, has given rise to some conflict of opinion.
    In England a suit pending in Ireland or in the plantations is no bar to the jurisdiction of the English court. Foster v. Vassall, 3 Atk. 580; Dillon v. Alvarez, 4 Ves. 357.
    And a suit pending in England is no bar to a suit pending in the plantations for the same matter. Bayley v. Edwards, 3 Swanst. 705.
    *The cases cited by Mr. Bingham are all of them, with perhaps one exception, cases where the former suit was pending in the same jurisdiction.
    Wherever the plea of a suit pending in a foreign jurisdiction has been allowed, it has always been held that the plea should show by averment the pendency of a suit id a court which had jurisdiction of the subject-matter and of the parties. Within the same jurisdiction a court will take judicial notice of the powers of the courts. This they can not do where the court is in a foreign jurisdiction.
    It is a matter of pleading, and proof, if the orphan’s court of Philadelphia had jurisdiction to distribute this estate. How were the court judicially to know? Newall v. Newton, 10 Pick. 370.
   Bowen, J.

The only question presented by the record in this case, which we deem it important to notice, is, whether this action can be maintained, while the accounts of Adams, Sen., are pending for settlement in the orphan’s court of Philadelphia.

Letters of administration were granted in Pennsylvania, where the estate of Mrs. Adams, the intestate, wass ituated. The administrator, from whom a distribution of that estate is now sought, gave bond and took upon himself the duties appertaining to the trust, under the jurisdiction of the proper court of that state. He proceeded without improper delay, to file his accounts for settlement, which were referred to an auditor, to whose report made thereon, exceptions were taken by the plaintiffs in this action. That report, and the exceptions thereto, are still pending in the orphan’s court, where complete jurisdiction has attached, and must, from necessity, be exercised over the property of the decedent. The plaintiff in error can not, therefore, until his accounts are settled by the court in which they are thus pending, and the amount in his bands subject to distribution is fully determined by its judgment, be sued in tbis state, and compelled to make distribution of tbe fund belonging to tbe estate. It can make no difference what may be tbe result of tbe exceptions to bis account. Tbe balance which be reports, as remaining *in bis bands, may be increased ■or diminished by tbe action of tbe court. No one bas a right to sue as heir or distributee, until tbe actual amount of bis liabilities is ascertained, and fixed by tbe order of tbe court. We must treat this administrator, in tbis particular, just as we would one who might be engaged in administering upon an estate here. He can be sued in the same manner, as if be bad been appointed under tbe laws of tbis state.

Thus far it' is our duty to recognize foreign administration, and to afford to tbe party who bas undertaken it, and is conducting it to completion, the same protection against tbe prosecution of suits here, which could, in Pennsylvania, be set up by him; and also to extend to him tbe law of our own state, which restricts tbe right of action by heirs and distributees, to tbe time when tbe proper court shall adjudicate tbe amount to be distributed. But we design to give no further effect to tbe proceedings of tbe foreign court, than to bold that their pendency and tbe unliquidated amount in tbe bands of tbe administrator for distribution, are sufficient to abate tbis action, and that tbe court below erred in not so ruling.

Judgment reversed.

Bartley, C. J., and Swan, Brinkerhoef, and Scott, JJ., concurred.  