5 Watts 50 | Pa. | 1836
The act of assembly directs apportionment among creditors to be made by auditors; and the court, therefore, has not power to remodel it. If it be erroneous, the course is to send it back for correction, The decree is therefore reversed, and the proceeding remitted to the orphans’ court, with direction, in the first place, to set apart a portion of the assets sufficient to answer the rent claimed by the executors of George Boyer, and to send the residue to auditors for apportionment; in the second, to direct an issue to try the validity of the claim for the rent, in which Samuel Boyer, executor of George Boyer, shall be plaintiff, and George Boyer, Jun. and Samuel Boyer, administrators of Michael Boyer, shall be defendants, — with a right of precedence on the trial list, and leave for the plaintiff to take out of court what may be recovered by him ; but in the third place, if there be a verdict and judgment against him, then to send the assets, before set apart, to auditors for distribution in like manner.
Decreed accordingly.
