All the parties interested in the question, are before us. There can be no dispute concerning facts, for they are matters of record.
The petition of the appellants is replete with equity. As to the appellee, the denial of the prayer of the petition must be repugnant to the feelings of every honest mind, and a supposed defect of power in the Orphans’ Court, could only have occasioned their adjudication.
The point of jurisdiction then seems the only question, which calls for our decision. Under the old law of 1705, § 2, (1 Dali *7ol ^aws’ Append. 44,) the words of which, in this particular, are pursued by the law of 19th April 1794, § 1, (3 St. Laws, 522,) “the Orphans’ Courts are to make just and “ equal distribution of what remaineth clear, after all debts and “funeral and just expences of every sort, first allowed and deducted, amongst the wife and children of the intestate,” &c.
To assert that a son or son-in-law, should take a full share with the other children, while the former owe a just debt to their father or father-in-law, and not deducting the same out of their purparts, would fundamentally violate the rules of equity, honesty, and good conscience. Of such debts, the other children are entitled to a full and equal proportion. Otherwise, the consequence necessarily must be, that the estate is not justly and equally divided. Such debts due to the decedent, form a part of his estate, and swell the common stock.
The policy of the law has changed the realty into personalty, and the appellee by the valuation, is become entitled to receive his wife’s distributive share absolutely as his own, if there ex isted no peculiar circumstances to bar him. But equality in the present instance is peculiar equity, and he is bound to do justice *79to the other branches of the family, while he demands his share of the estate.
The decree therefore of the Orphans’ Court, must be reversed, and the prayer of the petitioners be granted, by deducting the distributive share of Jacob Yohe and Susannah his wife, from the sum due by him on the judgment, and that the giving credit therefor, shall be deemed a full payment to him in right of his said wife ; and that the judgment of this court be remitted to the Orphans’ Court, to be carried into execution.
This decision was confirmed on an appeal to the Supreme Court, in March term 1808. 1 Binn. 358.