The opinion of the court was delivered,
by Sharswood, J.— If the Act of February 23d 1853, Pamph. L. 98, contained no provision for an appeal, the 59th section of the Revised Act of March 29th 1832, “relating to Orphans’ Courts,” Pamph. L. 213, would have been applicable in all probability. It provides generally that “ any person aggrieved by a definitive sentence or decree of the Orphans’ Court, may appeal from the same to the Supreme Court.” I speak doubtfully on this point, because there would be some reasons, from the nature and subject-matter of the proceeding authorized by the Act of 1853, for holding that the power given to that court was meant to be discretionary. The legislature have, however, specially confined the appeal to the case of a decree in favor of the petitioner. The words are very plain. After enacting that the court may order and decree that certain parts of the residuary estate of the testatator shall be set apart, and that all the remaining residuary real estate shall be exonerated from the lien and charge of the legacy and annuity in question, it declares that “ such decree shall have the force and effect of discharging and exonerating all such real estate accordingly, unless an appeal be taken from such decree to the Supreme Court within one year after entering of the same.” The appeal is here expressly confined to such decree as is before spoken of, and which is to have the effect of discharging the land from the lien unless the appeal be taken. It is clear that the appellant cannot stand on this provision. If he recurs to the Act of 1832 there would be this gross incongruity. One party would have three years in which to appeal — and the other but one. There are good reasons for confining the appeal to the single case of a decree in favor of the petitioner. The annuitants or legatees have a clear legal and vested right to their lien in its full extent. What is granted to the residuary devisee or his assigns is a pure matter of grace or favor. He must make out a very clear case. The auditor to whom the case is to be referred is to report upon the expediency of the exoneration prayed for “having due regard to the absolute and ultimate security” of the annuities and legacies ; and the court are to make the decree only when what remains “shall appear to be and with reasonable probability to continue to be, adequate and sufficient beyond all charges, expenses and deductions for the payment of such annuities and legacies, providing always a sufficient surplus to meet any contingent diminution or depreciation in the value or income of the estate and securities so set apart.” Here a very large discretion is conferred upon the court, which the legislature meant should be reviewed when exercised, because it then impinges upon the legal rights of the legatees and annuitants, by diminishing certainly their security. But the refusal of the court to exercise their discretion as prayed for impinges upon no legal rights of the petitioner. Such *432a refusal cannot properly, and ought not to he the subject of review. On the other hand it is essential to protect the legal rights of the legatee or annuitant that a decree of exoneration should be re-examined. Gross injustice might otherwise be done, without any means of redress.
Appeal quashed at the costs of the appellant.