Lehr's Appeal

Mr. Justice Gordon delivered the opinion of the court, The executors of Philip Lehr’s estate filed their account in the register’s office of York county, on July 27th 1806, which was duly presented to the Orphans’ Court and confirmed. An auditor was appointed, September 18th 1866, to distribute the balance of money found to be in their hands. On the 22nd of the succeeding November the* auditor filed his report, which was, so far as appears by the record, confirmed without opposition, and in December following the executors distributed .the money in their hands to the legatees as directed by the decree of the court. Thus was the matter fully closed up in regular order, in accordance with the terms and conditions prescribed by the Act of Assembly. Then, on May 9th 1867, we have the petition of John Lehr, die appellee, for a review of the previous proceedings, on the gronnd that the auditor had misconstrued the will of Philip .Lehr, and that he, the petitioner, had not received as much of file estate as lawfully belonged to him. This petition was entertained by the court, which, after reviewing the former report, came to the conclusion that it was wrong, and referred it back to the auditor with directions to re-hear the parties, and make distribution according to the principles expressed in the opinion of the learned judge who delivered it. On December 9th this second report of the auditor was filed, and upon it the decree was rendered which is the subject of the present appeal. Now, it may be that the interpretation of Philip Lehr’s' will, put upon it by the learned judge of the Orphans’ Court was the right one, and that the appellant, had he presented his claim in time, would have been entitled to the full amount awarded to him by the court’s decree. This, however, is a matter which we do not propose to discuss, since the discussion would be fruitless. The appellee’s petition for a review came too late, and it was, in itself, fatally defective, hence, it ought not to have been entertained. This proceeding is under the Act of October 13th 1819, which provides for petitions of review, and gives the judges of the Orphans’ Court power to open their decrees of confirmation and to re-examine the accounts of executors, administrators and guardians. But the proviso to that act expressly stipulates • that its provisions shall not extend to [29] any case where the balance found due shall have been actually paid and discharged. As, in the case in hand, distribution had been made by the executors to the parties entitled under the original decree, it is very clear, if we are to be governed by the statute, that the court had no jurisdiction to entertain the petition; hence its decree thereon was void and of no effect. Moreover, the petition is defective in this, that it does not allege that the balance found to be due was not paid over by the accountants. The petition is in the nature of a bill in equity, and must set out all things necessary to give the court jurisdiction ; here, however, the one thing of all others, necessary to give the court jurisdiction, is omitted. This was, of itself, fatal to the plaintiff's case, and his petition, for this reason, were there none other, ought to have been refused. Bussell’s Appeal, 10 Oas. 258. The decree of the court below is now reversed and set aside, and the petition of the plaintiff dismissed, at the costs of the appellee.