The opinion of the court was delivered, by
Agnew, J.The plaintiffs below claimed title as the children of Samuel Torrance, under the will of their grandfather Hugh Torrance, Sr., who bequeathed to them the proceeds of sale of the remainder in 100 acres of land, devised to their father Samuel Torrance during his lifetifne. The remainder of the land was ordered by the will to be sold after Samuel’s death, and the proceeds divided among his children. About two years before his death his children, by deed, elected to take the land itself instead of the money. It is now insisted in argument that this election was invalid, because there was one son, Matthew, who had not joined in making the election or in bringing suit, and who had died intestate and without issue. Whether there is anything in this point we have no means of judging. It was not made in the court below so far as the record shows, and no facts appear in the record to raise it. All we have in the record is the admission that the plaintiffs were the children of Samuel Torrance, and that the deed of election was by the children of Samuel Torrance. It is true the docket entry of the action informs us that Matthew Torrance died without issue and intestate, his death suggested, and the other plaintiffs are his heirs. But when he died, or whether he was a party to the deed, is not mentioned, and no copy of the deed is furnished upon the paper-book. The question is not. noticed by the judge in his charge, and no point upon it was made by the defendant. If the defendant intended to embrace it in his point requesting the court to charge the jury that from all the evidence in the case the plaintiffs are not entitled to recover, *510it is clear the attention of the judge was not drawn to this question or there was no evidence to raise it, for his answer has exclusive reference to the question of fraud, which was the great point in the trial of the cause. It is impossible for any court to perceive every aspect of a cause which may possibly be presented in the evidence, and if counsel will not fairly raise the question in the court below, we ought not to be asked to reverse because the point put to them may, like a drag-net, sweep everything before it.
Nor is the question of a trust for the children of Samuel during his lifetime, a practical question in this case. If it be granted that the devise to Samuel Torrance and his wife, “ for their and their children’s support,” created a trust for the children’s support, enforceable in equity, it bears not on the present action, which was brought after Samuel’s death; and not to enforce the trust, but upon their estate in the remainder, which took effect, not as a trust, but as a legal interest in the proceeds of sale, converted by their election into an estate in the land itself. The question, therefore, has now no practical bearing on the present controversy, and we are brought at once to consider the title of the defendant below, the plaintiff in error.
His purchase of the life estate of Samuel Torrance at the sheriff’s sale vested in him no other title; the life estate of Samuel, as such, only being sold on the judgment against him for his own debt. The defendant below enjoyed this estate during its whole extent. His next title is that acquired under the Orphans’ Court sale. And here we think the court below erred in favor of the plaintiff in error in holding that he derived any title under that sale. It is a conceded principle that the acts and decrees of the Orphans’ Court, within its jurisdiction, stand upon the same footing as those of any court of record, and are therefore not examinable collaterally, and cannot be set aside except in due course of law by appeal. But a want of jurisdiction is as fatal to the acts of this court as to those of any other: Elliott et al. v. Piersol et al., 1 Pet. 340. For a long time the Orphans’ Court was looked upon as an inferior jurisdiction, and its judgments were often examined collaterally until the case of McPherson v. Cunliff, 11 S. & R. 422, placed it on a higher foundation. This was followed by the revised act of the 29th March 1832, the 2d section of which enacted that “its proceedings and decrees in all matters within its jurisdiction shall not be reversed or avoided collaterally in any other court.” Jurisdiction, therefore, is the' test, and has been recognised by this court repeatedly as the true rule: Painter v. Henderson, 7 Barr 52; Lockhart v. John, Id. 139 ; Keech v. Rinehart, 10 Id. 242 ; McKee v. McKee, 2 Harris 231. The proper question which the court below should have examined and decided is, whether the proceedings under which *511the sale to the defendant below took place fell within the jurisdiction of the Orphans’ Court. The learned judge thought that because the clerk, in entering the petition on the docket, called it a petition for a sale for the payment of debts, the purchaser was not bound to look further, and the proceeding must be deemed to he within the jurisdiction of the court. It is not the clerk’s misdescription which settles the question of jurisdiction, but the facts set forth in the petition. The court acts on these and not on the docketing of the paper ; and this too is the provision of the statute, where the purpose is to secure the appearance of a person amenable to its jurisdiction. The 57th section of the Act of 29th March 1832, regulating the manner of proceeding in the Orphans’ Court in such case, declares it to be on petition of a person interested, setting forth facts necessary to give the court jurisdiction., the specific cause of complaint and the relief desired, supported by oath or affirmation. The 19th section of the Act of 16th June 1836, declaring the jurisdiction of the Orphans’ Court, directs that such jurisdiction shall be exercised under the limitations and in the manner provided by law.
Looking into the petition to discover the grounds of jurisdiction, we find it was presented by the executor himself, setting forth a settlement of his account, a balance due to the estate, which he had paid to legacies under the will. He proceeds to state the recovery of a judgment against himself for a legacy, and then to describe a tract of land of which he avers the testator died seised, alleging it to be charged with the payment of the legacy for which judgment was obtained and other legacies, and concludes with a prayer for a sale to pay these debts. It was not to sell for the testator’s debts, for none were averred or set forth or referred to. It was not to sell for a balance of an account, for no balance against the estate was alleged, nor a deficiency of assets. On the other hand, it was just as clearly not an application to sell the estate of the devisee as charged with the payment of the legacies. No devisee is either named or alleged, no estate of his is claimed to be charged, and no will referred to as containing such charge. The executor is himself the only party, and the estate of the testator the only subject of charge. The proceeding 'is neither one thing nor another, but a sort of cross between two. To this mongrel the executor made a return that he had sold the land of the testator, and this was the sale approved by the Orphans’ Court. But it was not a sale for the payment of the testator’s debts, for none existed or were averred to confer jurisdiction. It was not a sale for the payment of legacies, for neither the estate nor the person charged was set forth, nor was his estate actually sold; while the petitioner, the executor, had no authority to make application for the sale : Conard’s Appeal, 9 Casey 47 ; Field’s Appeal, 12 Casey 11; Swoope’s Appeal, 3 *512Id. 58; Strickler v. Sheaffer, 5 Barr 240; McKee v. McKee, 2 Harris 237. There was nothing to give the court jurisdiction. The proceeding was anomalous and unauthorized by any law — it was not merely irregular, but wholly void.
We are not unmindful that general jurisdiction over the subject protects the decrees of the Orphans’ Court from being assailed collaterally. But this is not such a case. 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 want of authority in the executor to petition would have been but an irregularity. It would be the height of injustice to hold that a man’s land can be sold in a proceeding against another (the testator), when neither his estate is condemned, nor he is made a party, and the person applying has no authority to demand a sale. The defendant below took no title by this anomalous and void proceeding. The question of fraud was therefore immaterial.
Judgment affirmed.