The news and herald. (Winnsboro, S.C.) 1877-1900, 1878-12-14
POWERS OF THE PRORATE COURT,

Tho Constitution Docs not Confer Upon
1t the Right ia Exercise Jurisdiction
In Partition OF r eal Estate.
AS before announced, the Supreme
Court has decided that probate
courts have no jurisdiction in par
tition of real estate. The case de-
cidad involved two points. Whether
a child born in slavery should be
considered Legitimate, and whether
the probate court has power to
partition lands. The court decided
the first point affirmatively, citing
the act OF the Legislature of 1865,
legitim.zing such children, Justice
McKiver dissenting, The Court
was unanimous on the second point,
and its reasons are set forth in the
following extract Of Justice Haskell's
opinion:
The act Of the Legislature, Sec~
ton Al, Revised Statutes, 673, does
undertake. to confer such jurisdic
tlon, but the Court concurs in the
views Expressed by Moses, G. j., in
his separate opinion in McNamee vs..
Waterbury, 4 $. G. Rep. 167, 8, that
to determine the limits of the juris.
diction of the Court of Probate we
must look to the Constitution, by
which instrument jurisdiction is
conferrs1 In this respect the Con-
stiCution Of 1868 differs widely from
taat of 1790. BY tho lattor the
judicial power of tho State was
"Vested in such Superior and In
ferior Courts Of law and equity as
the Legislature shall from time to
time dlrect and establish and it
was left to the Legislature to dis
tribute the ju iicial powers amongst
the several Courts SO established,
while by tho former (the Con,tit
tion of 1869 the judicial power is
vested in the several Courts named
and in sucn municipal and other u
ferlor Courts as the General Assem-
bymly deem necessary, but the
jurisdiction Of each of those named.
among them thu Court Of Probate,
is defined and specified. The juris-
diction thus defined and specified by
tho Constitution oan be neither
enlarged nor diminished by the
legislative power of the State, which
is itself the creature Of the Consti~
tuition and controlled by the pro-
visions of that instrument, which
constitutes the fundamental law.
Looking to the Constitution then
for the limits of the jurisdiction of
the Court of Probate. we find those
limits defined in Section 20, Article
~, AMI lis these defined cases for
the partition of real estate are not
embraced, the Court of Probate is
unquestionably a Court of inferior
ana limited jurisdiction. When the
exercise OF any p,wer is claimed for
Court of that character, it must 9
shown to exist by express grant, or
to be necessarily consequent upon
some power clearly given. Tee
power here exelcls by the Court
of Probate is not expressly granted
in the Constitution, nor is it neces-
sarlly consequent upon any power
which is given.
The conclusion follows that the
power does not exist. 1t is possible
that had the decree of the Court of
Probate been final in it's nature it's
adoption by the Circuit Court might
have operated as q decree of judg-
ment of that court, which unaues-
tionably has jurisdiction in partition
OF real estate. But such is not the
case, and the decisior Of the Circuit
Court whilo it afirms the decision of
the Probate Court remapds the
case for further proceedings in that
court. The judgment of the Circuit
Court therefore failed to cure the
defect of lack of jurisdiction, and
neither judgment can stand.
1t is unnecessary to consider the
remaining grounds of appeals as
they are in effect disposed Of by the
conclusion on the question Of juris-
diction.
The judgment of the Circuit Court
is reversed and tho case remanded,
with instructions that the proceed
ings in the Court of Probate be dis
missed go far as they relate to par
tition of real estate.
Speaking of this decision, the
Yorkville correspondent of the
Rock Hill Hampton Herald says !:
"No evil results are likely to follow
except whore minors are concerned,
for where adult persons have been
concerned in partitions made in that