The opinion of the com*t was delivered by

We are not able to perceive any legal ground upon which this decree can be supported. As to that ¡Dart of it which adjudges Rita B. Smith to be guilty of a contempt in disobeying the citation to account, it appears that a paper-writing signed by one of the judges of the orphans court was served upon her, but this was not the citation to account prescribed by the one hundred and twenty-third section of the Orphans Court act which can only be issued by the surrogate. The utmost efficacy that can be given this paper would be that of an order to show cause, and a neglect to comply would not subject a party to attachment for “failure to obey the citation of this court to account,” in the orphans court. No attempt was made by the orphans court to proceed as if this paper was a rule to show cause under section 179 of the Orphans Court act. In addition to what has been said the court ordered an accounting before a master and restrained the executrix from proceeding to account.

*481The second ground upon which the order for attachment is based is the failure to deliver to her co-executrix the books and vouchers “connected with said estate.” As the order to deliver them was made before the executrix was removed from office, and while she was still one of the executrices of the estate, the orphans court had no power to make such order.

The authority of the orphans court to require an executor to turn over assets of the estate to a co-executor is limited by section 152 of the Orphans Oourt act to eases where the executor has been removed, and as the co-executor in this case had not been removed when the order was made the orphans court had no- jurisdiction to make it.

Therefore, as the oourt had made an order without warrant in law, the executrix was not hound to obey it. It was as if no such order had been made, and the party could not be in contempt of an order non-existent in law.

The other point raised assails the power of the orphans court to order an accounting by a master, and to make decree thereon under the circumstances existing. The Orphans Court act prescribes how accounts of this character shall be stated and confirmed, and by section 122 it is declared that they shall not he allowed except on at least one month’s notice by advertisements set up in five or more public places in the county where the settlement is to be made, and by due advertisement in one or more newspapers. It is not pretended that in this case any such procedure was followed.

The power of the orphans court to refer an account to a master is to he found in section 126 of the same act, but that power is limited io cases where notice has been duly given, a final account exhibited, and exceptions to the account made by persons interested, in which case the court may hear the contest or refer it to the surrogate, an auditor, or master to hear the parties and their witnesses and thereupon restate the account. The proceedings in this ease show that no account was filed, and therefore the foundation of the right to refer to a master did not exist, and the-action of the court was not justified by any statute.

The course to be pursued in cases where an executor refuses to-account is to remove him and appoint another in his stead who* *482will account according to the requirements of the statute upon due notice and advertisement, and when removed to require the disqualified executor to turn over to the new appointee the assets of the estate. When the account is property before the court, if exceptions are filed to it, they may then be disposed of by the court or a restatement ordered to be made by-one of the statutory officers.

In the present case none of the statutory requirements were observed and the order of the orphans court cannot be sustained and should be set aside.

The decree of the prerogative court will be reversed and the record remitted to that court in order that tire views here expressed 'may be carried out.

For affirmance—None.

For reversal—Tixe Cujee-Justice, Garrison, Swayze, Thenchard, Bergen, Vooriijges, Minturn, Kalisch, Bogert, Vredenbubgh. Congdon, White, Treaoy—13.