RACHEL JOHNSON, guardian of ELIZABETH JOHNSON and others, vs. MANLOVE JOHNSON, 2 Harr. 273

By the Court: J. M. Clayton, Chief Justice. It is doubtless true that at common law a guardian cannot sue in his own name for the choses due to his ward, but must cause the suit to be brought in the names of the minors as suing by him their guardian, and not by attorney. The constitution of 1792 (Digest 25) provides that the Orphans’ Court shall hear the exceptions (to administrators’ accounts, &c.) “ of any persons concerned ?” and a guardian of any person entitled to a share of the deceased’s estate is certainly one of these.

Indeed, the 16th Sec. of the 6th Art. enumerates guardians as well as persons entitled to shares as the very persons entitled to notice of the filing such account. The revised constitution of 1831 contains a similar provision. The guardian, therefore, may undoubtedly file exceptions in such a case as the present, which the Orphans’ Court is bound to bear. The 10th

section of the “ act concerning the Orphans’Court,” passed February 10th, 1829, also expressly provides that a “guardian shall be admitted to sue or defend far his ward.” But on the other point we think it indispensable, that in cases of exceptions to accounts the exceptant should show his interest in order that the respondent may know who it is that calls him into court, and in what right. There' must be some rules of pleading in the Orphans’ Court as elsewhere, in order to attain the ends of justice.

Is not it just that a party instituting proceedings in the Orphans’ Court should show his interest and right to make such proceedings 1 And if the respondent is entitled to such notice, it is also necessary to the jurisdiction of the court, as it only has jurisdiction to hear the appeal of persons interested or concerned; the concern and interest must therefore appear on the record. Suppose the case of an assignee of an heir at law or other person interested filing exceptions, should not the assignment be stated to give the respondent notice ?

It might be a forgery, and the defendant notified for the first time at the trial of the right in which the exceptant appeals, would not have it in his power to controvert it. But this case is one where the interest of appellants is not only not stated on the exceptions, but the record does not show that it was proved. A question might perhaps arise on a clause in the act “ concerning the Orphans’ Court,” (Digest, 420,) whether proof on this point might not yet be taken in this court.

It is the clause which authorizes the taking the testimony of witnesses in the Orphans’ Court, in writing, to be used in the appellate court; and, where the testimony has not been so reduced to writing, authorizes the appellate court to hear.the witnesses. The question is whether that clause authorizes this court to hear witnesses in all cases, or only where the testimony is necessary to give the party appealing the benefit of his appeal.

In other words, can the respondent in appeal call witnesses before the appellate court to establish a fact not stated on the record, and which is necessary to sustain the decree appealed from. Cullen, for appellant. C. G. Ridgely, for respondents. We have considered this matter and are of opinion, that in a case like the present such proof is not admissible. The decision of the case on appeal ought to be on the same matters presented to the court below.

Suppose this court to decide with the Orphans’ Court, that the exceptions need not set out the interest of the party, but that such interest might be shown in proof; non constat that such proof was adduced in the court below; and if this court hears such testimony, we may decide a very different case from the one presented to and decided by the Orphans’ Court.

So far as we can collect from- the record, these exceptions were sustained without either alledging or proving any interest in the exceptants, while here the decision would simply be, that a party might prove an interest without alledging it, and that this would be sufficient to give the court jurisdiction of the case.

On the ground, therefore, that it nowhere appears from this record that the exceptants were interested or concerned in the estate of William Johnson so as to entitle them to appeal from the accounts of his administrator, or to give the Orphans’ Court jurisdiction to try such appeal, we reverse the decree of the Orphans’ Court; but without prejudice to any other exceptions, and we remand the record to the court below. The respondents in this court for costs.