Henry Stevenson, et al vs. Edward Schriver and Wife, 9 G. & J. 324

Dorsey, Judge, delivered the opinion of the court: The first in point of order of the questions which have been discussed in this case, is, have the appellants a right to appeal from the order in question, passed by the Orphans court ? By the first

section of the act of 1818, ch. 204, a party deeming himself aggrieved by the decree, order, or decision of the Orphans court, may appeal to the court of Appeals. The term party, in this

section of the act of assembly, is not used in a technical sense, necessarily importing a litigant before the court, in the proceedings in which the decree or order passed, at the time of or antecedently to its passage; but may also mean one on whose interests the decree or order has a direct tendency to operate injuriously, and who, after its passage, may appear in court and claim the privilege of appeal. Many, if not most of the orders of the Orphans court, are wholly ex parte, and yet the right to appeal has never been denied to him who has sustained an injury thereby.

The only inquiry, then, on this question, is, has the order before us an evident tendency to impair the rights of the appellants? We are of opinion that it has.

For argumenti gratia conceding, as is alleged, that the passage of the claim of an executor or administrator, by the Orphans court, is not conclusive upon a distributee or creditor suing such executor or administrator, and leaves him at liberty to shew the illegality of the allowance thus made; yet it so increases the difficulty of so doing, that such an order cannot be said not to impair the rights of a distributee, or of a creditor, where the assets of the deceased are inadequate to the payment of debts.

The allowance of the claim is prima facie evidence of its correctness, and the executor or administrator need offer no further evidence to sustain it. The onus probandi is shifted from the executor or administrator to the creditor; and in most cases under circumstances, where the proof given in support of it, is wholly unknown to him, and consequently he can have no means of shewing its insufficiency.

It is a proceeding ex parte in its nature, and of which no record is required to be kept; the only evidence of its existence is the endorsement upon the voucher, which remains with the executor or administrator, unless he gratuitously files it with the register. The executor or administrator then has nothing to do but to pass his account before the Orphans court, pocket or destroy his voucher; and the distributee has no means of impeaching the allowance made him, or disproving its correctness. From an order placing a distributee or creditor in such a condition, there surely ought to be a right of appeal.

The appellants’ first point cannot be sustained. The authority of the Orphans court, in passing claims against the estate of a deceased, is not as has been contended, confined to strictly legal claims, but embraces every species of indebtedness, whether legal or equitable in its nature y nor is their power to pass accounts limited to such as are proved according to- the requisitions of the act of assembly of 1785,

chapter 46. They do not derive their power' of passing open accounts, as is assumed by the appellants’ counsel, under the 8th

section of the 9th sub eh. of the act of 1798, ch. 101, nor are their powers on that subject imperatively restricted by it. The object of that

section of the testamentary system, was to restrict the authority of executors and administrators in the payment of open accounts, not passed by the Orphans court, to such as were authenticated in the mode thereby prescribed. The powers of the Orphans court in passing accounts anterior to their payment, is derived from the 2d

section of the act of February session, 1777, ch. 8, and the 1st

section of the 15th sub ch. of the testamentary system. The will of Doctor Albert Du. Fresne is inartificially drawn, and no

interpretation can be given to it in reference to the question now before us, which can be regarded as free from all objection. But on collating the 2d, 3d, 4th, 5th, and 8th clauses of the will, we are of opinion that there is no such distinct and unequivocal expression of the intention of the testator, to limit the legacy to his grandaughters, to their sole and separate use, to the exclusion of the marital rights of the husband, nor such proof in the record of an agreement by Josias Stevenson, the deceased husband, to hold or use it as such, as could be enforced by any judicial tribunal.

The intention of the testator we think is expressed in the fifth clause of his will, and that upon the marriage of Elizabeth Reigart the legacy vested absolutely in her, and that such portion of it as was received by the deceased husband during coverture, in virtue of his marital rights became his absolute property, and consequently, that the claim now preferred by his widow against his estate cannot be supported. This court will sign a decree reversing the order of the Orphans court with costs, to the appellants, both in this court and in the court below, and dismissing the appellees’ petition. DECREE REVERSED.