The opinion of the court was delivered by
Gibson, C. J.
Did the plaintiff’s appointment come before us collaterally, and were it founded on a removal of the testamentary guardian as a preliminary step, it might make a question of some perplexity. On the principle of Tarbox v. Hayes, 6 Watts 398, the judgment of a court of competent jurisdiction, may not be avoided in a collateral proceeding, though the party affected were neither summoned nor heard; which accords with Ravenscroft v. Ravenscroft, 1 Lev. 305, where in a proceeding which bears a close resemblance to the present, administration granted without citing the necessary parties, was held to be voidable but not void. The principle is an elementary one; and in all such cases the distinction between collateral examination and direct revision, must be kept in view, for it furnishes a clue to the decisions. It is important, therefore, to understand how the point is before us. It Avas originally started in the orphans’ court; but how, or on what occasion, the record does not show. That court has an undoubted right to direct an issue to the common pleas for the trial, of facts contested in a proceeding regularly before it; and presuming that it did its duty in this instance, we are not to suppose that it abused its power by lending its assistance to the settlement of a hypothetical point, however convenient it might be to the parties; or that the common pleas would have received the issue had it been im*171providently directed. But though the right of the orphans’ court to direct an issue for the trial of facts in a proper case, is undeniable, it has no pretence of right to send a case, as a chancellor may, to the judges for their opinion on a point of law: and yet there was no disputable fact involved in the present instance. Still, though it is proper to suggest to that court the propriety, if not the necessity of looking more narrowly into the nature and extent of its power in time to come, we must take it that this issue was intended to be made the foundation of its subsequent action in the revision of its appointment; so that the legality of it comes before us directly and not collaterally. The issue was certainly a strange one; and it is only in this aspect that the fitness of it is perceived. Now, though it was declared in Ravenscroft v. Ravenscroft, that a grant of administration without citation of parties, cannot be treated as a void one in a collateral proceeding, the appointment may be declared void here as it comes before us directly; and it would be void even had the testamentary guardian been irregularly removed to make way for it. But he was not removed; and, as there was no-vacancy, the orphans’court had no jurisdiction. Thus if administration cum testamento annexo be granted before renunciation by the executor, a sale by the administrator is simply void. Abrams v. Cunningham, 2 Lev. 182; S. C., 2 Mod. 186; and the same principle was ruled in Baxter and Beale’s Case, 1 Leon. 90. Now it will not be pretended, in our case, that the testamentary guardian was superseded ipso facto by the order of appointment; and as there had been no precedent resignation or sentence of removal, the court had not jurisdiction. There could not be double sets of guardians acting by colour of authority, but in opposite rights, and deriving title from inconsistent sources; for to hold the acts of the one to be good in the first instance, and those of the others to be good altogether, would lead to collision and inextricable confusion. The plaintiffs were appointed as in the case of an ordinary vacancy; and as the court had not jurisdiction, its appointment is a nullity.
Judgment affirmed.