#### Giddings’s *et al.*Appeal.

1. An appeal to the Supreme Court does not lie from the decree of the Common Pleas vacating the appointment of a sequestrator.

2. A certiorari is generally a proceeding only to give effect to objection to the form of proceedings.

3. In a certiorari the only thing before the Supreme Court is the record; neither the evidence in the case nor the opinion of the court is a part of the record.

4. An order setting aside an execution is reviewable on a writ of error; but the'Supreme Court cannot judge of the regularity of an execution issued below, when matters of fact which do not appear on the record are involved.

5. An order quashing a foreign attachment is not the subj ect of a writ of error.

6. When a court of record may quash or dissolve on extrinsic evidence, which cannot be put on the record, the presumption is that everything was done rightly and according to law.

*7.*A sequestrator was appointed on an execution against a widow who, it was alleged, had a life interest in her husband’s estate under proceedings in partition. The appointment was afterwards vacated and the proceedings were removed to the Supreme Court by certiorari. *Held,*the Orphans’ Court record in the partition was not evidence.

8. The court had power on the extrinsic evidence to vacate the appointment, and their order was not subject to review in the Supreme Court.

9. In partition in the Orphans’ Court the widow’s interest should be secured

by the decree. >

10. Brown *v.*Ridgway, 10 Barr, 42; Commonwealth *v,*Gurley, 9 Wright, 392; Lancaster County Bank *v.*Stauffer, 10 Barr, 398; Lefever *v.*Wi'tmer, 10 Barr, 505 ; O’Hara *v.*Pennsylvania Railroad, 2 Grant, 2-11; Pontius *v.*Hesbit, 4 Wright, 309; Righter *v.*Rittenhouse, 3 Rawle, 273; Young’s Petition, 9 Barr, 215, cited.

March, 1872.

Before Thompson, C. J., Sharswood and Williams, JJ., Agnew, J., at Nisi Prius.

Certiorari to the Court of Common Pleas of Bradford County to remove an appeal from the decree of that court. Of March Term, 1872.

*73It appealed by tbe paper-books in this case that to September Term, 1857, of the Orphans’ Court of Bradford County, proceedings in partition were had on the real estate of Oliver S. Gray, which resulted in its sale by the administrators, etc., of the decedent, in different parts, to Jeremiah F. Gray and Chauneey Tingley respectively.

An auditor was appointed to distribute the “ money in the hands of the administrators raised from the sale of the lands.” He found that there was in the hands of the administrators a balance of $1194.05, which he “ orders to be divided among the seven children of Oliver S. Gray, after the interest of one-third has been secured to Elvira Gray, widow of decedent, during the term of her natural life.”

In the schedule accompanying the report, he sets out the various persons entitled to a share of the funds, with the amounts payable to them respectively, amongst the rest:

“ Elvira Gray, interest for life on $398.02.”

The report was confirmed February 11th, 1859.

It nowhere appeared that the widow’s interest had been secured on the lauds, but that the whole purchase-money had passed into the hands of the administrators.

On the 1st of May, 1868, Giddings and Anderson obtained a judgment against Elvira Gray, the widow, for $68.52. A fieri facias was issued on this judgment; the return was a levy on lands, viz., the widow’s interest in the lands sold to Tingley.

On the 19th of February, 1870, on the application of Giddings and Anderson, the court directed a sequestration of the proceeds of her life estate. The writ was issued March 9th, and a sequestrator appointed.

On the 15th of May, 1871, the court vacated the appointment on the following opinion:

“Elvira Gray, the defendant, is the widow of Oliver S.Gray, who died intestate, leaving real estate. In 1858, proceedings in partition were instituted in the Orphans’ Court, which resulted in a sale of the real estate. The court ordering the sale directed that one-half of the purchase-money should be paid down and the balance in five years. The whole amount of the purchase-money has been paid, and the widow’s share was not directed to' remain in the hands of the purchaser for the use of the widow, as provided by the act of Assembly.

“The auditor’s report, which was confirmed finally, 11th of February, 1859, fixed the -widow’s interest in the fund at $398.02, and he directed that this sum be secured to her during her natural life ; but nothing of this.kind was done. The interest of Elvira Gray being in this situation, the *74plaintiffs obtained a judgment against her and levied their execution upon her interest in her deceased husband’s land. Upon their application, a sequestrator was appointed by the court, on the 19th of February, 1870. A rule was granted to show cause why this writ should not be set aside. The regularity of this writ of sequestration is the question now to be determined.

“The counsel for the defendant contends that by the proceedings in partition, the interest of Elvira Gray, in the real estate of her husband, was divested, and became personalty. The general proposition, that the interest of a widow in the lands of her husband, dying intestate, after sale in partition, is converted from real estate into personal estate, cannot be maintained.

“ In Shaupe *v.*Shaupe, 12 S. & R., 12, the widow’s interest after partition is held to be real estate, and liable to levy and sale as such. In Zeigler’s Appeal, 11 Casey, 173, a widow’s dower, as ascertained by proceedings in partition, is not a lien, but an estate in law. In Miller *v.*Leidig, 3 W. & S., 456, Mr, Justice Sergeaut says, in speaking of the widow’s interest after partition: ‘ Such rent is an incorporeal hereditament — real estate.’ In Walker v. Della ven, 14 Wright,101, Judge Chapman, in speaking of the widow’s interest, under proceedings in partition, says: ‘ It has been considered real estate. It has been held to be in the nature of a rentcharge, and liable to be taken in execution and sold as real estate: ’ Kurtz’s Appeal, 2 Casey,465; Thomas *v.*Simpson, 3 Barr, 69; and Helpich *v.*Weaver, 11 P. F. Smith, 385, all teach the same doctrine.

“In some of the cases the lands were taken by the heir at the appraisal, and in others, the heirs refusing to take, the lands were sold by order of the decree of the Orphans’ Court. The decree was irregular, and had objections been interposed by the widow, or any other party in interest, the proceedings in partition would have been set aside. But the Orphans’ Court had jurisdiction of the subject-matter, and its decrees are conclusive until set aside, or reversed. The decree made in this case cannot be avoided collaterally. See Morehead *v.*Commonwealth, 1 Grant’s’Cases, 214: ‘The facts in this case require us to hold that the widow’s interest in her deceased husband’s lands were divested by the partition in the Orphans’ Court. The order appointing a sequestrator must, therefore, be vacated.’ ”

Giddings and Anderson took a certiorari from the Supreme Court. They assigned for error the vacating of the appointment of the sequestrator.

*75*E. Smith*and *E. Foyle,*for certiorari.

The interest of a widow in her husband’s land is real estate: Ziegler’s Appeal, 11 Casey, 173 ; Miller *v.*Leidig, 3 W. & S., 456 ; Helfrich *v.*Weaver, 11 P. F. Smith, 385 ; Walker *v.*De Haven, 14 Wright, 101; Kurtz’s Appeal, 2 Casey, 465.

J. W. *Calif,*contra.

The decree in partition, although unauthoi’ized by the act of Assembly, divested the widow’s interest in the land, because the decrees of the Orphans’ Court cannot be reversed collaterally: Morehead *v.*Commonwealth, 1 Grant, 214; Painter *v.*Harrison, 7 Barr, 48.

Mr. Justice Sharswood

delivered the opinion of the court, March 25th, 1872.

The certiorari in this case issued to remove the appeal of Giddings and Anderson from the decree of the Court of Common Pleas. The record brought up has this entry : “ Order appointing sequestrator in this case vacated.” No appeal was entered, nor does an appeal lie in such a case, as was expressly held by this court in Lancaster County Bank *v.*Stauffer, 10 Barr, 398, and Lefever *v.*Witmer, ibid., 505; in the first of which cases an appeal from a refusal to appoint a sequestrator of a life estate was quashed. The certiorari indeed brings up the record, but there is nothing on the face of the proceedings to show that the court below transcended its legitimate power. A certiorari is generally a proceeding only to give effect to objections to the form of proceedings: Young’s Petition, 9 Barr, 215. The only thing that is before this court, or could legally be brought up by the certiorari, is the record. The opinion of the court is no part of it: Commonwealth *v.*Gurley, 9 Wright, 392. It is true that an order setting aside an execution is reviewable on a writ of error: Pontius *v.*Nesbit, 4 Wright, 309 ; O’Hara *v.*Pennsylvania Railroad Company, 2 Grant, 241; yet it has also been determined that this court cannot, on a writ of erroi% judge of the regularity of an execution issued in the court below, when the question involves matters of fact which do not appear on the record : Righter *v.*Rittenhouse, 3 Rawle, 273 ; and, therefore, an order quashing a foreign attachment, though it is undoubtedly a final disposition of the action commenced by this process, is not the subject of a writ of error, for say the court: “ Where a court of record may quash or dissolve on extrinsic evidence, which cannot be put on the record, the presumption is that everything that was done, was done rightly and according to law:” Brown *v.*Ridgway, 10 Barr, 42. The record before us shows that the writ of sequestration was set aside on motion of the at*76torney of the defendant, who, it is alleged, as widow, ought to have had a life interest secured by the decree of the Orphans’ Court in the proceedings for the partition of her husband’s real estate. There is a copy of the proceedings of the Orphans’ Court filed with this record, but forming no paid of it. There appears no decree securing the widow’s interest, which was clearly erroneous, but she did not appeal, and she moved'in the court below to set aside the sequestration on the ground apparently that her interest in the land was divested and converted into personalty. It is clear that there is no irregularity, in the proceedings, and that the court had power . upon the extrinsic evidence submitted to them to vacate the sequestration, and that their order is not the subject of review here.

Appeal quashed.