, 1872-08-08
gau' department,
Opinion Of Judge Jacobs.

wnether the 451 sec. npage III, Stat.
1868, gave the District Courts jurisdic-
ton over the subject of dover, or wheth-
er the District Courts obtained it from
their general fund of Chancery and Com
mon Law powers. Certain it is that the
Supreme Court vindicated the jurisdic-
ton of the District Courts in cases where
the right to dover was denied in the
Ebe case. There were prior to that deci-
sion two grave doubts upon the subject.
1st, Whether the wife was entitled to
dover under the Donation law, and
I'd. What tribunal, in case of dispute
as to the right to dover. had jurisdiction
Of the subject.
The whole subject was in uncertainty
and demanded Legislative sction. The
act of 1864 was passed Immediately af-
ter the Ebe decision and is full and COM
plete. 1t gave jurisdiction where there
was no dispute in the first instance to
the Probate Court where it properly be-
orged; but by sort of negative impli-
cation SO far as the act of 1864 is con-
cerned it gave jurisdiction in case Of dis
pute to the District Court, or in other
words. left it just where the decision in
the Ebe case placed it. There was
no need of a positive Legislative declar-
alton that the District Courts should
have jurisdiction in cases where the
right to dover was denied. because the
Supreme Court had very clearly declar-
ed the law in such cases; but there was
need of Legislative declaration in cases
where there was no dispute for fear the
Supreme Court decisions would draw
the whole subject of dover into the
District Couit.
The laws of 1869, Sec. 4sS, page 12S.
and Sec. SOB, page 131, leave the law
just where the act of 1864 aud the de-
cision in the Ebe case left it. Where
there is no dispute about the right of
dover the jurisdiction is in the first in
stance in the Probate Court as part of
the Administration of the Estate, with a
right of appeal to the District Court
Where there is denial Of the right Of
Dover that right can be litigated in the
first instance in the District Court.
But how is the Court to know that
there is dispute We answer by pro-
per allegation in the complaint showing
that the persons whose duty it is to as
sign dover dispute the right Of the wild
ow and in no other way. The general
jurisdiction IS in the Probate Court,
where it ought to be; but where there is
an exception, the facts constituting that
exception must be distinctly stated as
jurisdictional facts.
Again upon the death of an ancestor
his real estate descends to his heirs and
devisees subject to the payment of his
debts. His personal representatives
have temporary right of possession
with a power of sale under the orders
of the Probate Court for specific pur-
pose. That purpose is payment of debts
and expenses of Administration. The
personal representatives have no right
of property in the real estate but merely
right of possession for the purpose
named.
The heirs and devisees take through the
ancestor not through the personal repre-
sentatives. They take into possession
only the rights Of their decedent They
administer the estate of their intestate
or testator. The administrators of Crow
lev have to do with his estate and his
alone. What right have the administra-
tors of Crowley to set off dover out of
hi. estate to the widow Of George Gala
CHER am satisfied that this complaint
cannot stand as il now is, and hence
| will have to sustain this demurrer.
As have always found counsel cour-
teously disposed to follow the decisions
of the Court when the Court happens to
differ from their views, it is probably
well enough for me to say that do not
mean to decide that this complaint can
not be so amended by proper averments
showing a dispute about the right OF
this widow to dover in this land, and
that these defendants by virtue OF their
possession obstruct her exercise OF this
right in such manner as to call for
the Intervention Of the Court. SO far, at
least, as to bar them: but the heirs OF
Crowley, if any, the rights of the Coun-
tv in case of an esch eat and the heirs
of Gallagher could in no manner be af-
fected by that decision.
The real truth of the matter Is that a
suit in equity alone, making all persons
interested parties, with full statement
of all the facts would be the only effec-
tive remedy. o. JACOBS. Judge.
TIE POSSIBLE FUTURE LADY OF THE
WHITE HousE.-In view of the posi-
b;l;tv Of her becoming next year +" the