
    [Chambersburg,
    October 31, 1827.]
    PURVIANCE and others against The COMMONWEALTH, for JOHN ALEXANDER’S Administrator.
    IN ERROR.
    Where a balance remains in the hands of the administrator, the usual mode of designating the persons entitled, is by action at law: but the Orphans’ Court, on the petition of any one interested, would be bound to proceed, and decree distribution.
    In such proceeding, notice should be given as far as the nature of the case admits, and the whole subject should be acted on.
    A decree'leaving it uncertain who were the parties designated, is void.
    A plea to an action founded on such decree, that the plaintiff is not the person named therein,- is a good plea in bar.
    Error to the Court of Common Pleas of Franklin county, where a verdict and judgment were rendered in favour of the plaintiff below, and defendant in error, the commonwealth, for John 2?.. Latimer, administrator of John Alexander, against Purviance, Crawford and others, .defendants below and plaintiffs in error. The case was tried before the associate judges of the court below.
    
      Scire facias to recover a share of the estate of John Alexander, who died in 1798. Plea nil debent. The share of the plaintiff was stated to be one tenth.
    On the 15th of September, 1800, the first administration account of John Calhoun and Samuel Purviance, administrators of John Alexander, was settled, stating a balance of two thousand seven hundred and forty-four dollars and fifteen cents, in their hands. The secend-administration account was filed on the 9th of March, 1813, and confirmed on the 8th of June, 1S13, by the Orphans’ Court, finding a balance in the hands of accountants, for distribution according to the decree of the court thereto annexed, thirteen thousand, two hundred and seventeen dollars and eighty-five cents- .
    A feigned issue was tried in the Circuit Court of that county, entered in 1805, in which William Alexander, Andrew Galbraith, and Jane, his wife, Oliver Alexander, and Elizabeth, his wife, Richard Duffy, and Martha, his wife, were plaintiffs; and William Jamieson, and L. his wife, John Stewart and, Margaret, his wife, Robert Gitteland, and Esther, his wife, Thomas Auld, and Elizabeth, his wife,--— Tate, and Agnes, his wife, John Alexander, - Huston, John ———, and Jane, his wife, Agnes Milligan, and Quentin Anderson, and Nancy Ann, his wife, were defendants: and on the 9th of April, 1811, there was a verdict for the defendants. This appeared by the docket entries; but it was admitted that the declaration and other papers in the cause, could not be found; and that Mr. Duncan was the counsel of the defendants in that action. It was also admitted, that Mr. M‘Cullough was the counsel of the administrators of John Alexander, in stating and presenting and settling the second administration account.
    The plaintiff next offered in evidence, a paper dated the 17th of April, 1813, in the handwritingof and subscribed with the initials of J. Hamilton, deceased, late president of the court, and the endorsement of sums on the same in the handwritingof Mr. M‘Cullougk, and also two papers attached thereto, in the handwriting of Thomas Duncan, Esq., marked, “ filed October, 1812, and November, 1812.” It was admitted that the said papers came from the office of the clerk of the Orphans’ Court. This evidence was objected to by the defendants, but the court received the evidence, and the defendants excepted.
    The following was the decree above-mentioned:
    No. 458, administration of John Alexander. On the administration account, the court made a decree as follows:
    It appears to the Orphans’ Court, that, although the legislature, evidently, under our intestate acts, have preferred representation in every case where there is a survivor of brother or sister, or survivor of any class of the next of kin, it seems to be otherwise when there are no survivors. Here all the uncles having died, and the issue being all cousins, all equally next of kin to'the intestate, at the time of his death, the court is of opinion that this is a case not contemplated by the act, so as to divide the intestate’s estate per stirpes. The decision in England, on a statute nearly in the same words, has been according to this construction.
    Where there is a survivor, it is reasonable to prefer him: and that principle adopted as to him, carries the distribution throughout. Here all are equal — all are next of kin, and there seems to be no reason for inequality of division. If the contrary was intended by the legislature, it is a casus omissus. The court, therefore decree, that distribution of the intestate’s estate be made among all the persons named; they being cousins, and being in equal degree to the intestate. . J. H.
    (Endorsed,) This decree to be open to an application for consideration at next term, if required. J. H.
    The following was the paper in the handwriting of Mr. M‘Culloughf found endorsed on the back of the foregoing decree, and it was conceded to have been made as a memorandum some time after the papers had been filed.
    The distribution according to the within decree is as follows; to wit:—
    
      Dots. cts.
    
    
      John Alexander, one share, 1320.784
    
      William Jamieson and wife, one share, 1320.784
    
      John Stewart, and Margaret, his wife, 1320.784
    
      Robert Gilleland, and Esther, his wife, 1320,78-4
    
      Thomas Auld, and Eliza, his wife, - 1320.784
    
      Agnes Tate, - 1320.784
    
      Mary Huston, - 1320.784
    
      Jane Milligan, - - - - - 1320.784
    
      Agnes Lauson,. - 1320.784
    
      Quentin Anderson, - 1320.784
    On a separate piece of paper, in Mr. Duncan’s handwriting, was the following:—
    Distribution to be made, subject to a supplemental account,-to be. rendered by administrators, and t,o a further allowance to be made to them.
    The defendants in the feigned issue, who represent the intestate, submit to the court to decree in what manner distribution is to be made. John Alexander died intestate since the act of 1794, leaving at his death his next of kin of equal degree, and his sole representatives,
    1. John Alexander, William Jamieson and Livy, his wife, late Livy Alexander, John Steivart and Margaret, his wife, late Margaret Alexander, Robert Gilleland and Esther, his wife, late Esther Alexander, children of Hugh Alexander, who was the brother of William Alexander, father of the intestate.(4)
    2. Thomas Auld and Eliza, his wife, late. Eliza Alexander, Agnes Tate, late Agnes Alexander, children of John Alexander, a brother of William Alexander, who was the father of the intestate. (2)
    3. Mary Huston, the daughter and only child of James Alexander, the brother of William Alexander, who was the father of the intestate.(l)
    4. Jane Milligan and Agnes Lauson, children of Jane Lauson, sister of Isabella Lauson, who was the mother of the intestate. (2)
    5. Quentin Anderson and Nancy Ann, his wife, the daughter and only child of Robert Lauson, the brother of Isabella Lauson, the mother of the intestate. (1)
    The court direct distribution to be made amongst the parties above stated, under advisement, and will decree the several distributive parts under the intestate act on the Monday of November term.
    
      In the handwriting of Mr. Duncan.
    
    Distribution decreed,’subject to a supplementary account, to be rendered by the administrators, and subject to any further allowance the court may make to the administrators, to wit: — One fifth part to John Alexander, William Jamieson and Livy, his wife, late Livy Alexander, John Stewart and Margaret, his wife, late Margaret Alexander, Robert Gilleland and Esther, his wife, late Esther Alexander, the children of Hugh Alexander, who was the brother of William Alexander, the father of John Alexander, the intestate.(4)
    One fifth part, to Thomas Auld and Eliza, his wife, late Eliza Alexander, Agnes Tate, late Agnes Alexander, and- John Alexander, children of John Alexander, a brother of William Alexander, yvho was the father of John Alexander, the. intestate. (3)
    One fifth part to Mary Huston, the daughter and only child of James Alexander, the brother of William Alexander, who was the father of John Alexander,'the intestate. (1) - ’
    One fifth part to Jane Milligan and Agnes Lauson, children of Jane Lauson, the sister of Isabella Lauson, the mother of the intestate, to hold as tenants in common. And one fifth part to Quentin Anderson and Mary Ann, his wife, the'daughter and only child of Robert Lauson, brother of Isabella Lauson, the mother of the intestate.
    • The defendants gave in evidence the receipt of John Alexander, dated the 2nd of March, 1819, for two hundred dollars, and then proposed to add the plea, that the plaintiffs ought not to have or maintain their action aforesaid, against them: because they say, that the said John Alexander, deceased, of whose estate, the said John R. Latimer is administrator, was not the said John Alexander mentioned in the decree of the Orphans’ Court, recited in the. plaintiffs’ writ of scire faciqs, and was not one of the heirs of John Alexander, who died in Chambersburg: and this they are ready to verify. '
    The defendants also proposed to give in evidence, that John Alexander, for whose representative this suit is prosecuted, is the same John Alexander, to.whom the said payment was made on the 2nd of 'March, 1819, and that he is the seme, Alexander for whose administration this suit is brought, and that the said John Alexander, to whom said payment was made, and whose representative the said John R. Latimer is, was the son of John Alexdnder, and not the son of Hugh Alexander. That there was a Hugh Alexander and a John Alexander, (uncles of the said John Alexander, who died.in Chambersburg:) and that the said uncles, Hugh and John, left two sons of the name of John Alexander, who are cousins in the same degree, to the decedent John Alexander, who died in Chambersburg; and also offered to prove by -the declarations of the said John Alexander, for whose representative this action, was prosecuted, and by other evidence, that there are several other cousins in the same degree, not named in the issue in the Circuit Court, or in the,Orphans’ Court; who are entitled in equal shares with the parties named, to a distributive share of the estate of the said decedent, John Alexander, who died in Chambersburg, as aforesaid. And the said John Alexander, for whose representative this suit is prosecuted, is not the John Alexander named in the decree of J. H., president of the court, given in evidence, or in the endorsement. And- that -the persons entitled as heirs in the same degree above-mentioned, and not named in the decree, as well as the said John Alexander, by whose representatives this suit is prosecuted, at the time of the said decree, and ever since, resided out of the United Stales, and that John 'Alexander, the son of Hugh, also resided out of the United States. To the admission of which plea and evidence, the plaintiffs objected, and the court refused to permit the pleadings to be amended, or to receive the evidence. To which opinion of the court, • the defendants excepted.
    The defendants requested the court to instruct the jury,
    1. That the distribution made, as is alleged by the plaintiff, in the Orphans’ Court of Franklin county, and as given in evidence, is not conclusive as to the said parties, being the only representa-’ fives of the intestate. ) . '
    2. - That other persons who stand in the same relation, though then unknown, are not barred of their claims by the omission to name them in such proceedings in the said Orphans’ Court.
    3. That it is incumbent on the plaintiff to make out with reasonable certainty all the heirs and representatives of the said testator, to enable him to recover what is the distributive part of his intestate, if entitled to any.
    4. That it is uncertain whát is .the distributive share of the plaintiff’s intestate.
    5. That the plaintiff’s intestate having in the receipt of 1819, given in evidence, described himself as John Alexander, son of John, is not entitled to recover a tenth part of the balance on the administration account, under the decree of the Orphans’ Court of the said county, and under the evidence given in this cause.
    6’. That the plaintiff .cannot recover in this action without showing by other proof than the decree of the Orphans’ Court, that his intestate was one of the heirs of the intestate, and was entitled to a share of his estate, and was the person to whom the share was decreed: and as no such evidence has been given, the plaintiff cannot, therefore, recover.
    7. That the plaintiff, if entitled to recover as an heir a distributive part, is not entitled to receive interest on such distributive share until after demand made.
    The court directed the jury as follows: — '
    
      1. That the proceedings and decree of distribution, made in the Orphans’ Court, is, from the lapse of time and acquiescence, conclusive.
    2. That the proceedings had,and decree of distribution made in Üie Orphans’ Court, excludes unknown relations, if any such there be.
    3. That the record of the Orphans’ Court is a sufficient designation pf the representatives of the intestate; arid from it, under the pleading, the jury may find for the plaintiff.
    4. That there is some uncertainty as to the sum now due, arising from the payment made, and interest that may be chargeable; of all which the jury is to judge, but the plaintiff is entitled to a tenth part according to the decree.
    • 5. That the receipt of 1819, signed by John Alexander, as son of John, is no bar to the plaintiff’s recovei'y.
    6. That the evidence exhibited on the trial of this cause, may by the jury be considered, under the pleading, sufficient to warrant the plaintiff’s recovery.
    7. That if from the evidence the jury are of opinion, that the administrators used the money of the intestate as active private funds employed by them in business, they may and ought to be charged with interest thereon after a reasonable time from their final settlement at the Orphans’ Court: but the jury is to judge from the evidence as to whether the administrators ought not to have, say, from one to five or six months after' the said settlement, to vest the money before they be charged interest.
    
      Chambers, for the plaintiff in error,
    stated the questions to be whether there was in fact such'a decree as mentioned on the writ; and, if so, was it conclusive against the other representatives not named ? He contended it was no decree in favour of particular persons, it was only the settlemént of a principle. But, if there was a decree as to a particular person, we ought to be allowed to show that the plaintiff is not, one of them. The Orphans’ Court and Common Pleas have co-ordinate power to say who the heirs are; but certainly we had a right to file a new plea, if’the evidence was not proper on nil debet. 13 Serg. & Rawle, 444.
    
      Dunlop, contra.
    
    Here is a decree, and it is conclusive. 11 Serg. & Rawle, 17, 37. The court will give operation to a decree, wherever it can. 9 Serg. & Rawle, 133. The court has the right to designate the distributees. The time of appeal having past, this decree is final and definitive, and not now to be inquired into. 11 Serg. & Rawle, 430. They ought to have pleaded in'abatement, if we represented ourselves to be the John named in the decree.
   The opinion of the court, Duncan, J., being absent, was delivered by

Gibson, C. J.

As the Orphans’ Court has jurisdiction of the subject matter of distribution, it may designate the parties entitled, and its decree will be conclusive. But so unusual is it to do so at the settlement, that I have never known an instance. The usual way is to confirm the account, stating the balance, where there is any, to be in the hands of the accountants, subject to distribution according to law. And this is the safest course where there is a doubt as to the persons entitled, because it leaves the matter open to deliberate-inquiry in an action at law, instead of suddenly concluding by a decree the rights of parties who' are not before the court and who seldom have actual notice. The Orphans’ Court, however, would be bound to act on the petition of any one interested; but, in such case, it ought to exact all that the nature of the case admits of to give notice; and, even then, I would not hold myself concluded, unless it should appear to have actfed on the whole subject. What is there here in the shape of a decree? We have a paper in the handwriting of the president, in which it is decided that distribution be-made per capita; the conclusion of which is in these words: “The court, therefore, decree that distribution be made among all the persons named, they being cousins, and in equal degree to the iiitestate.” Now, no persons were named except in two other papers in- the handwriting of counsel, found tacked to the opinion of the president, each of which appears to have been presented separately as the basis of a decree: in one of which are found names of ten persons who were defendants in a feigned issue between them and an entirely different set of claimants; by which, if it were assumed as the basis, the present plaintiff would be excluded; and in the other eleven are named, among whom the plaintiff is included. Endorsed on what is called the decree, are the names and supposed shares of the ten persons who constituted the successful party in the feigned issue; bbt so far is this from having been the act of the court, that it is conceded on all hands to have been a memorandum of counsel, and made several months after the paper was filed. The reference, therefore, if it be to these papers, is altogether uncertain; and if it be not, it is a reference to nothing. The paper was no doubt intended as a memorandum of the opinion of the court as to the principle of the decree, leaving its détails to the counsel and the clerk when it'should come to be made up in form and entered on the record. The late President Hamilton, who was one of the ablest and most careful-judges of the Orphans’ Court of whom I have any knowledge, would never have considered his decree perfected by filing a paper such as this; from which it is evident that he viewed the matter before him as a preliminary question; and that he did not consider himself as deciding between individuals, but classes. But, were this otherwise, the decree would indisputably be void for uncertainty.

But, were it even conclusive, the defendants ought to have been permitted to show that the plaintiff was not entitled under it; and this, either on the plea of nil debet, which was already on the record, or the special plea which they tendered at the trial, and which by force of the act of assembly was clearly admissible. It did not propose to give the plaintiff a better writ, but to bar him of his demand. The defendants pleaded that the plaintiff’s intestate was not the John Mexander mentioned in the decree; and if this be in abatement, it would be equally so in an action on a bond to plead that the plaintiff and the obligee are different persons. The error in this respect is palpable; but on both grounds the judgment is to be reversed.

Huston, J.

There are some things unusual in this case. The case was before the Orphans’ Court of this county. That court alone can decide who are the persons entitled to distribution of the estate of an intestate, and the amount due to each; this, by the express words of the bond in the first section of the act of 1794, and the concluding clause of the said section, and by every clause and section in the act which have any bearing on the subject: this is subject to appeal, and no other court'has jurisdiction of this matter. • The Orphans’ Court of this county had.two sets of claimants before them; one set who alleged the intestate to have been their kinsman; another, of a different family, from another part of Ireland, claiming him to have been of their family. An issue was found and tried, taken to the Supreme Court, and affirmed. It is singular that the order for this issue and the whole record are not now to be found. Who directed the trial, and what was to be tried by that direction, we must collect from parol proof, or from inference from some things which do appear.

After this trial one set of claimants disappears; the other comes into the Orphans’ Court and claims the estate. At first a scheme of división into five parts, dividing it per stirpes, was submjtted to the Orphans’ Court:, in this the defendants in the feigned issue, are all named, and one other is named, or the name of John Alexander is twice introduced.

This mode of division was not adopted by the court; but the paper on which it is drawn up is found in the office of the Orphans’ Court, and is annexed to the following paper; commencing, “'The defendants in the feigned issue, who represent the intestate, submit to the court to decree in what manner distribution shall be made. John Mexander, the intestate, died since 1794.” And then proceeds to name all the defendants in the feigned issue, and states their pedigree, showing them to be the children of the uncles of the intestate, and that the uncles are all dead. The Orphans’ Court made a decree, in which, after premising the facts, they say, “ The court, therefore, decree distribution of the intestate’s estate to be made among all the persons named, they being cousins and being in equal degree with the intestate.”

The administrators had settled their accounts, and the amount was known. On the.back of the paper on which the decree is written, was endorsed — u Distribution according to the within decree, as follows:—

“John Jllexander, one share, one thousand three hundred and twenty dollars and seventy-eight cents,” and the same as to nine other names, being the names of the defendants in the feigned issue, and in the paper submitted to the court. This endorsement was in the handwriting of a gentleman of the bar who was counsel for the administrators. I consider this an absolute, and, being unappealed from, final decree of the Orphans’ Court, deciding the persons entitled, and the sums to which each was entitled.

1. The objections to it are, that we have not the records of the feigned issue. I think we have enough to show that it was directed by the court; and what it was to decide, and did decide, and that it was adopted by the court. If we have not, we have a decree, independent of the feigned issue before us.

2. It is objected, that as two schemes of division were before the court, and in one of them eleven persons were named, and in the other ten, and as both have been put in the bundle of papers, it is uncertain which number the court had in view in the decree. I have no difficulty on this subject. The court adopted one of them; that which referred to the feigned issue, and it would be strange to suppose the phrase, the persons named, referred to a rejected paper.

3. The distribution endorsed, and the names of the ten, and sum to each, is not in the handwriting of the judge who wrote the decree, but of a gentleman of the bar. 1, however, consider it as the act of the judge, done as it were by his clerk, a reader accountant and scribe, as read to him when completed and adopted by the Orphans’ Court, and from that moment their own act. The general practice is, that when the account is passed the court order “ distribution to those entitled according to law.” This is the minute on the account. The clerk of the Orphans’ Court, however, in all cases so far as I have known, writes on the record of the Orphans’ Oourt at length the names of the distributees, and the sum due to each. This is done in the presence of the administrators, and is considered the act of the court, as such made out when a copy of the record is called for. In ordinary cases where parties live in the county, no difficulty arises or can arise: if the clerk has not leisure at the moment, he takes a memorandum of the names and makes the calculation, and completes the record at his leisure. Unfortunately in this case no record was ever made; all is y.et on loose paper; still I consider this the decree of the court, made out, adopted, and decreed by them; for no human being who knows him who made it, can surmise it was done in any other way than as I have stated it; that is, to relieve the court from the labour of calculation and writing, and shown to them. But, if under our practice this was not conclusive, or for any of the above reasons should not be held so, after the lapse of time it ought to be prima facie evidence. John Alexander left Ireland in 1774; to bring proof by persons who knew him is not to be expected; witnesses who did not know him cannot tell who were his relations; we may as well give the estate to those in whose hands it is. The decree was made in 1812; the administrators have acted on it, paid some of the persons, and paid the expenses of feigned issues and -the counsel of the defendants. It is too late for them to deny there is a decree.

By our law a man may put in a plea after the jury have been sworn, and ii1 the other party is surprised and wishes time to meet it, the jury are dismissed, (on payment of costs by the party putting in the new plea in some districts;.), this being by positive enactment, it is error to refuse such plea unless it is plainly frivolous or totally inconsistent with former pleas, (as non est factum, after another plea which expressly admitted the execution of the instrument and avoided the effect of it.) This case is singularly circumstanced; the distributees all live or did live in Ireland. The plaintiff sues as administrator of John Alexander. The defendant may put him to prove that the John Alexander, whom he represents, was the són of Hugh Alexander, of the parish of-, in the county of-:-, and the brother of Mrs. Jamieson, Mrs. Stewart, and Mrs. Gilleland, named in the feigned issue, and in the paper on which the decree is founded.

There was then error in this; and also in refusing to permit the defendants to prove that the plaintiff’s intestate was not the son of Hugh Alexander, and not the John Alexander named in the feigned issue and the paper before-mentioned.

Gibson, C. J., delivered the opinion of the majority; Duncan, J., and Tod, J., took no part

Judgment reversed, and a venire facias de novo awarded.  