any two of whom should be a quorum, should compose the orphans' court thereof, and the register of wills together with the said judges or any two of them should compose the register's court. By the Act of April 13, 1791, the courts were established in conformity with the constitution.

The orphans' court, although called a court of record in the Act of 1713, was not, at first, accorded that dignity. In 1786 it was held that the settlement of an executor's account was not conclusive" and this decision was followed in 1818.3 In other cases there was shown a tendency to discredit proceedings before these tribunals which, perhaps on this very account, had become loose and irregular. Judge Duncan in McPherson v. Cunliff1 gives a melancholy picture of the careless practice; the orders written on loose scraps of paper and deposited in untitled pigeon holes, or packed up as useless lumber in old trunks. Nevertheless, his opinion in that case, vindicating the authority of decrees of orphans' courts, checked their decline, while his criticism, added to complaints from the bench and bar, moved the legislature in the resolution for the revision of the civil code passed March 23, 1830, to require the commissioners "to revise the several statutes relative to the settlement of accounts before registers and proceedings in the orphans' courts, as soon as conveniently may be, and report the same for the determination of the general assembly at their next session." Accordingly the commissioners made their first report to the legislature on January 31, 1831, and

13 Smith's Laws of Pennsylvania, 28.

2 Marriot v. Davey, 1 Dallas's Report, 164 (1786).

3 Kohr v. Fedderhaff, 4 Sergeant & Rawle's Reports, 248 (1818).

* 11 Sergeant & Rawle's Reports, 422 (1824). So far as Philadelphia County is concerned the orphans' court records are in a better state of preservation than those of the other courts.

presented two bills, one relating to registers and registers' courts and the other relating to orphans' courts. Upon the latter bill the commissioners observed:

"The bill relating to the Orphans' Court has occupied a large share of our time and reflections. The peculiar structure of that court, its extensive but ill-defined sphere of jurisdiction, the magnitude of the interest upon which it operates, the uncertainty of the code of law by which it is regulated, and its equally uncertain and insufficient practice and process, serve to surround with difficulties every attempt to frame a regular system for it: So convinced are we of the arduousness of the task of compiling a complete system, which shall embrace the constitution, jurisdiction, powers, and practice, of this court, that had it not been for the express directions of the legislature to report upon it at the present session, we should probably have reserved this subject to the last, and given it the utmost deliberation that our limits allowed. Of the necessity however of an early as well as thorough examination and revision of the acts of assembly relating to this tribunal, we are fully convinced."1

The bills recommended by the commissioners were enacted into laws at the session of 1832, that relating to registers and registers' courts being approved March 15, 1832,2 and that relating to orphans' courts on March 29, 1832.3

Under these acts the register was given jurisdiction within the county for which he was appointed, "of the probate of wills and testaments, of the granting of letters testamentary, and of administration, of the passing and filing of the accounts of executors, administrators and guardians, and of any other matter whereof jurisdiction may be at any time expressly annexed to his office."

1 First Report of the Commissioners to Revise the Civil Code (1831).

2 P. L. 135.

3 P. L. 190.

When a caveat was filed, objection made to the granting of letters of administration, or when any disputable or difficult matter came into controversy, the register, at the request of any person interested, was required to call a register's court for the decision thereof. So also, an appeal might be taken to the register's court from all the judicial acts and decisions of the register. The register's court comprised the register of wills and the judges of the court of common pleas of the county or any two of said judges.

After the register had allowed and filed any account in his office, he was required to prepare and present a certified copy thereof to the orphans' court at its next stated meeting and give notice by public advertisement that said accounts would be presented to the orphans' court for confirmation.

The judges of the court of common pleas of each county or any two of them composed the orphans' court, which was declared a court of record, the decrees of which were not to be reversed or avoided collaterally in any other court. The jurisdiction of the court was

summarized in the act as follows:—

"The jurisdiction of the several Orphans' Courts of this Commonwealth shall extend to and embrace the appointment, control, removal and discharge of guardians, the settlement of their accounts, the removal and discharge of executors and administrators deriving their authority from the register of the respective county, the settlement of the accounts of such executors and administrators and the distribution of the assets or surplusage of the estates of decedents, after such settlements among creditors or others interested in the sale or partition of the real estate of decedents among the heirs, and generally to all cases within their respective counties, wherein executors, administrators, guardians or trustees are or may be possessed of or undertake the care and management of, or are in any way accountable for any real or personal estate of a decedent, and such jurisdiction shall be exercised in the manner hereinafter provided."

1 Section 4 of the Act of March 29, 1832, P. L. 190.

No account of an executor, administrator or guardian was to be confirmed and allowed by the court unless advertised by the register of wills as provided in the prior act and all accounts, except partial accounts by guardians, were to be examined by the court or referred to auditors, unless otherwise agreed by all parties in interest. These provisions were adopted to compel a more thorough audit of accounts. Under the prior practice the settlement of accounts in the register's office was generally a perfunctory matter and no more than a mere vouching of the items of the account, while the confirmation in the orphans' court was largely a matter of form. A reform in these matters was absolutely necessary if the decrees of the orphans' court were to be made conclusive. Finally the practice and process of the orphans' court were defined and strengthened. Writing in 1847, Mr. Hood observed:

"The orphans' court, as at present constituted, is a court of a peculiar nature both as respects its jurisdiction, powers, and the forms of its proceedings, partaking of the characters of a court of common law, a court of equity, and an ecclesiastical court. The process of the orphans' court would seem, in some respects, to resemble that of the English ecclesiastical courts, whose proceedings are regulated according to the practice of the civil and canon law; or rather according to a mixture of both collected and new-modelled by their own particular usages and the interpretation of the courts of common law. It was this establishment of the civil law process in the ecclesiastical courts that made a coalition impracticable between them and the national tribunals of England. The act of 1832 has remodelled the forms of proceeding in the orphans' court, making them approximate more nearly to the common law. Hence, in the orphans' court practice, are found the motion, rule, fieri facias, and subpæna of the common law courts, the petition of chancery, and the citation of doctors commons; and mingled with them, the order, decree, and sequestration derived through these equity and ecclesiastical tribunals, from the civil and canon laws. In one respect the orphans' court may be said to be of a higher nature than the court of chancery and the ecclesiastical courts of

England: for the court of chancery, when proceeding by subpœna, is not a court of record, nor are the ecclesiastical tribunals, courts of record."1

Under the Act of 1832, and some additional acts relating to decedents' estates subsequently passed on the recommendation of the commissioners, the orphans' courts reached their full dignity as courts of record and have justified their creation by a long career of usefulness. The confidence of the community has been further marked by the extension of their jurisdiction in numerous cases as, for example, under the Price Act.2 To fully describe the powers of the court would exceed the limits of this chapter and indeed open up the whole subject of orphans' court practice, a matter that has been thoroughly discussed in several text books. It is necessary, however, to refer to certain changes brought about by the constitution of 1874 which abolished the register's court and conferred its jurisdiction on the orphans' court, provided for the establishment of separate orphans' courts in counties having a population exceeding one hundred and fifty thousand, and directed that all accounts filed with the register of wills, as clerk of a separate orphans' court, should be audited by the court without expense to the parties, unless the parties themselves nominated an auditor.1

3

These changes have proved most beneficial. The registers' court was unnecessary and was wisely abolished, while the creation of separate orphans' courts in the larger communities has been particularly advantageous in furnishing to the judiciary of the state a corps of

1 Hood on Executors, 103.

2 Act of April 18, 1853, P. L. 503.

3 Scott on the Intestate System of Pennsylvania, Rhone's Orphans' Court Practice, Brewster's Orphans' Court Practice, Pepper and Lewis's Digest of Decisions, Vol. 14, col. 24234.

4

1 Article V, § 22, Constitution of 1874; see appendix.