Appeal of Thomas

Opinion,

Mb. Justice Stebbett :

In November, 1885, Ann Thomas, as widow of William R. Thomas, presented her petition to the Orphans’ Court for partition of the real estate of which he died seised; and thereupon an inquest as prayed for was awarded, and citation to parties interested was issued. In obedience to the citation, the children and heirs at law of the intestate appeared and filed an answer, in which they, in substance, averred that petitioner never was the lawful wife of their father, William R. Thomas; that on the contrary, at the time of her alleged marriage to him, she was the lawful wife of David Jones, who survived their said father, and that the petitioner had, therefore, no interest in the real estate of which the latter died seised. A replication having been filed and issue joined, a commissioner with the powers of an examiner and master was appointed, and afterwards reported in favor of the respondents. The Orphans’ Court being dissatisfied with the commissioner’s findings and conclusions, set aside his report and directed an issue to the Court of Common Pleas, in which petitioner was plaintiff and the respondents were defendants, “to be tried in the following manner: The plaintiff, Ann Thomas, shall simply put in evidence the certificate of her marriage, issued by Benjamin Jay, alderman, and then the affirmative of the issue shall be upon the defendants, with the burden of proof to show that Ann Thomas was not the lawful wife of William R. Thomas, the decedent,” etc.

That issue came on to be tried, and on June 14, 1887, a verdict was rendered in favor of the plaintiff therein, and after-wards certified into the Orphans’ Court. Whereupon the court, on November 28,1887, awarded an alias inquest, with notice, etc., and the matter was so proceeded in that, on September 26, 1888, a sale of the premises described in the petition for partition was ordered, etc. From that decree this appeal was taken. The errors assigned are, (1) setting aside the commissioner’s report; (2) directing the issue to the Court of Common Pleas, and (8) decreeing partition and sale of decedent’s real estate.

The first and second specifications are without merit. The commissioner was appointed for the purpose of taking testimony, and reporting facts, etc., for the information of the court. If the court was dissatisfied with his conclusions, and in the exercise of its discretion set aside his report, neither party has a right to complain. The proper exercise of such an undoubted discretion is not reviewable here. By the 55th section of the act of March 29, 1832, P. L. 208, the respective Orphans’ Courts are expressly empowered “ to send an issue to the Common Pleas of the same county, for the trial of facts by a jury whenever they shall deem it expedient so to do.” The power thus given to the court does not appear to have been improperly exercised.

The third specification is more substantial. It depends on the result of tlie issue in the Common Pleas. If there had been no error in the trial of that issue, the subsequent proceedings in partition in the Orphans’ Court would be free from error; but inasmuch as on the writ of error to the Common Pleas in that case, we have found it necessary to reverse the rulings of the court below, and order a venire facias de novo, Thomas’s Admr. et al v. Thomas, 297 of this term, the proceedings in the Orphans’ Court, subsequent to the order directing the issue to the Common Pleas, must be reversed, and all proceedings stayed until final determination of the question involved in that issue. If it is determined in favor of defendants therein, the petition and all proceedings in partition should be dismissed at the costs of petitioner. Tf, on the other hand, it is finally determined that she is the widow of William it. Thomas, the proceedings in partition should go on to final decree. Her right to commence and promote those proceedings depended, of course, on whether she was the lawful wife of said Thomas at the time of his decease.

It is adjudged and decreed that all proceedings, subsequent to the date of the order directing an issue to the Common Pleas, be reversed and set aside: costs to abide the final result, and proceedings to be stayed until determination of appellee’s right to have’ partition of the premises described in her petition.