dissenting. — The paper-book in this case is very short, though long enough to bring up the only point on which the court below were alleged to have erred, viz., in rejecting evidence to prove that William Clay, the defendant below, was a man of limited means of supporting and educating his children, and unable to do so without using the means received from the estate of his former wife, their mother, and that he maintained and educated the plaintiff, Mary, from the time she was three years old till she was married at the age of about 18. The court rejected this evidence, and this was the only error assigned at first. This *235court affirmed the decision as to that matter. But on the morning of the argument in this court another error was assigned in these words: “It appears from the record that the plaintiff below was not entitled to recover.”
To understand this, I must give the rest of what appears in the case. By our Act of Assembly, when the account of an administrator or executor has been passed in the Orphans’ Court, a transcript of the decree may be taken to the Court of Common Pleas and filed, and shall be a lien on the estate of the executor or administrator; and any person-entitled may proceed thereon by scire facias to recover his proportion of the balance. This suit was a scire facias on such transcript, and the plaintiff below not only gave in evidence the decree of the Orphans’ Court, but showed that it had been contested, referred to auditors, and a report, which was affirmed.
The reason for reversing on the last error assigned is, that under the Act prior to the revised Act the husband was, on administering, entitled to the whole personal estate of his wife, and her children cannot, after her death, sue and recover it from him. There was no dispute about this; but it was said that was a defence before the Orphans’ Court, and if there was error in the decree, the remedy was by appeal, at any time within three years, or by Act of 1840 within five years, on petition, alleging specific error or errors. The Orphans’ Court alone can settle an administration account, and this as well under former laws as under the Act of 16th of June 1836. That by the Act of 29th of March 1832, the Orphans’ Court is a court of record, and it is enacted that its proceedings and decrees in all matters within its jurisdiction, shall not he reversed or avoided collaterally in any other court, but they shall be liable to reversal, modification or alteration on appeal to the Supreme Court.
The majority of this court, assuming that the sole and exclusive right of the husband had been forgotten by his counsel (the oldest lawyer in the district, and among the most eminent), and not adverted to by the judges in the several stages of the contest in the Orphans’ Court, reversed the judgment on this second error. I would not have done so; among.other reasons, because the 29th section of the Act last cited, in the second proviso, expressly declares that although the amount of lien be filed, yet on an appeal the account shall, if it is lessened, be only for the sum ascertained in the Supreme Court; and the prothonotary is commanded, on a certificate from the Supreme Court, to enter' that on his docket, and the decree shall be for that amount and no more; and a certificate thereof shall be sent to the prothonotary of the Common Pleas, and the lien be for that amount for five years and no longer, unless revived by scire facias.
From the settlement of Pennsylvania the Orphans’ Courts and Common Pleas were held before justices of the peace, until the *236constitution of 1790; and the clerks of these courts were seldom lawyers. Once a year the judges of the Supreme Court held a Court of Nisi Prius in each county, and the judges of that court were not always lawyers. Before and for some years after 1790, when the proceedings of an Orphans’ Court came incidentally before the Common Pleas, “ now having the president a lawyer, or before the judges of the Supreme Court at a Nisi Prius,” they were not treated as the proceedings of a Court of Record. At length the matter excited attention, and by slow degrees, from an unwillingness to overrule the decisions of their predecessors, it was established in M’Pherson v. Cunliffe that they were conclusive in cases within the jurisdiction of that court. The Act of Assembly of 1819 directed that the settlement of an administration account not appealed from within one year, should be conclusive. In 1832, in the Act I have cited above, three years were allowed for an appeal; and in 1840, five years, in case of a specified error. After the Act of 1819 was passed, the first Act allowing the balance found on settlement against an executor or administrator to be filed in the Common Pleas, and to be a lien on his estate, and even before the Act of 1832, it was decided that on a scire facias on such lien filed, the correctness of the decision and decree in the Orphans’ Court could not be inquired into. And in Clark v. Callaghan, (2 Watts 259), where the Orphans’ Court had ordered distribution and had allotted the sum payable to each heir, in a suit by an heir, it was decided that the administrator could not set-off the proportion of a debt against the decedent, recovered since the settlement and decree of the Orphans’ Court, but must go to that court by petition to have the decree opened and corrected. And in Thompson v. M’Gaw, (2 Watts 164), it is said, “ that the decrees of the Orphans’ Court, unappealed from, in matters within its jurisdiction, are binding and conclusive in every collateral inquiry, as well in relation to administration accounts as other subjects, is now the settled law. The remedy for the party aggrieved is by appealand until this case, so has the law been held since; and this is a case not only within the jurisdiction of the Orphans’ Court, but we think its exclusive jurisdiction.
It is quite possible the defendant below, in his character of administrator of his deceased wife, (though it would have been more correct in the character of guardian to her children,) received money from her father’s estate, which must go to his and her children, and not to him, as if her father survived Mrs Clay and died intestate, Mrs Clay’s share of his personal and real estate would go to his children. It was never hers, and does not go to her husband. So if her father had devised money to her, and survived her, not altering his will, the legacy did not lapse but went to her children and not to her husband. If Mr Clay did not object to the charge against him as administrator, this court has no right to reverse collaterally what he.did not appeal from. *237These are not the only supposable cases in which he might be liable. Suppose a devise to his wife until her children came of age and then to them, he would receive this as administrator of his wife, and his right would cease when the right of the children accrued to the possession. Independent of the express Act of Assembly, I object to reversing on supposition. On the other hand the old and best rule is to affirm, if a supposable case in which the judgment would be right. The gentleman concerned for defendant in error had not been of counsel in the Orphans’ Court, and could say nothing of the facts there.
Judgment reversed.