made, fifteen pounds to be expended in purchasing clothing for the son and putting him out as an apprentice, and the balance was directed to remain in court until further order.1

The proceedings are usually by petition and answer and the judgment of the court is entered in the form of an order. In 1738 a subpoena was issued to an executor to appear and exhibit his account, and on his failure to do so an attachment was awarded. But ten years later the citation is in use. Thus, on June 20, 1748, on petition by the guardian of a minor and heir at law of a decedent averring that the widow' and administratrix had married again and was wasting the estate, a citation was directed to the administratrix and her husband, requiring them to appear and render an account, returnable the tenth day of July next.3

The most important audit of these early days was that of the accounts of the trustees for the sale of the lands of the Society of Free Traders, which by an Act of Assembly of March 2, 1722-3,' was referred to this court, which was also directed to hear and pass upon all claims for a share in the funds. This society, an association in the nature of a joint stock company, which had purchased twenty thousand acres of land from Penn in 1681, had not proved a success, its affairs had been neglected and at the instance of the certificate holders and their heirs the act was passed under which its business was wound up. The court first met for this audit on March 10, 1724, and the meetings continued at intervals for a number of years.

It is now, of course, well settled that the orphans' court while a court of equity with respect to subjects

2

Orphans' Court Docket No. 2, pages 59, 93.

3 Orphans' Court Docket No. 3, page 53.

• III Statutes at Large, 345.

within its jurisdiction, has no general chancery powers, but only such as are derived from statute or are necessary to make its statutory powers effective.1 In 1745 there is recorded a curious effort to extend its jurisdiction. William Good, by his guardian, Ralph Assheton, filed a petition averring that petitioner was the owner of ten acres of land in the township of Passyunk which had "by the extraordinary rise of the price of lands thereabouts become of considerable value;" that one Joseph Scull, brickmaker, taking advantage of the fact that petitioner was a minor, had entered on said land, dug pits and was about to set up a brick yard to the damage of petitioner, pretending that he had a lease from petitioner's father, although that lease had expired and contained no clause permitting him to commit waste, and praying that the said Scull might be cited to appear and answer the complaint and, if the facts prove true, then that Scull be restrained from committing waste or that petitioner have such other relief "as is agreeable to equity and good conscience." Whereupon it was ordered that the said Joseph Scull be served with a copy of the petition and cited to appear and answer the same.2 The answer filed July 29, 1745, averred that any demand William Good might have had against the respondent for waste, damages or otherwise was not cognizable in this court, but in the courts of common law duly constituted and settled in said province, and further that the tract referred to did not belong to petitioner but to his mother, who had leased it to respondent, and that the present right and title to the same was not to be impeached, tried and determined in this court but in the ordinary course of law.

1 Brinker v. Brinker, 7 Pennsylvania Reports, 53 (1847); Steffy's Appeal, 76 Pennsylvania Reports, 94 (1874); Kidder's Estate, 1 Kulp's Reports, 412 (1875).

2 Orphans' Court Docket No. 2, page 176.

There is no entry of a decree, and perhaps the answer was regarded by the parties as conclusive, inasmuch as a question of title was raised. After the closing of the governor's court of chancery there was no court with jurisdiction to enjoin the commission of waste, and the attempt to persuade the orphans to exercise that power indicates the need of such a remedy, at least to the mind of the guardian, who was himself a justice, and to that of the presiding judge, William Allen, afterwards chief justice of the province.1

The constitution of 1776 provided that the orphans' court should be held quarterly in each city and county, while the Act of January 28, 1777,2 passed for the purpose of putting into effect so much of the provincial law as was necessary in the commonwealth, conferred upon these courts the powers and jurisdiction which they had theretofore exercised. By the Act of March 14, 1777,3 registers of wills were directed to be appointed for each county by the general assembly and the office of register general was abolished. The constitution of 1790 vested the appointment of registers in the governor, but the office was made elective by the amended constitution of 1838.4

By the constitution of 17905 it was provided that the judges of the court of common pleas of each county,

1 By the Act of May 19, 1874, P. L. 206, § 7, the orphans' court has power to prevent by order, in the nature of an injunction, acts contrary to law or equity prejudicial to the property over which they have jurisdiction. See Pepper and Lewis's Digest

of Decisions, Vol. 15, col. 24472.

2 IX Statutes at Large, 29; 1 Smith's Laws of Pennsylvania, 429.

3 IX Statutes at Large, 68; 1 Smith's Laws of Pennsylvania, 443.

4 Article V, § 11, Constitution of 1790; Article VI, § 3, Constitution of 1838.

5 Article V, § 7, Constitution of 1790; 3 Smith's Laws of Pennsylvania, page xxxix.

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.

1

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 conclusive2 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).

4 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."

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.