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In re Smith's Estate

Orphans' Court of Delaware, New Castle County

December 15, 1952

In re SMITH'S ESTATE.

Albert J. Stiftel, Wilmington, for Nellie T. Smith.

[33 Del.Ch. 352] John M. Bader, Wilmington, for Mary Ellen Berry.

David B. Coxe, Jr., Wilmington, for Anne P. Elliott.

LAYTON, Judge.

The first ground for dismissal is that this Court has no jurisdiction of a dispute over rents because by Secs. 3735, 4824 and 5001 of the Revised Code of 1935, such actions may be maintained in the Superior Court.

Section 3765 of the Revised Code of 1935 provides:

'3765. Sec. 32. Orphans' Court; Powers and Authority; Scope of:--For the purpose of effectuating the provisions of this Chapter, the Orphans' Court shall have, in addition to the jurisdiction and powers already conferred upon it, general equity powers touching the subject matter of this Chapter, and authority to make any order or decree not inconsistent with the provisions of this Chapter touching causes in partition, or matters incidental or pertaining thereto, which the right or justice of the cause may demand.'

Section 3747 of the Revised Code of 1935 further provides:

'3747. Sec. 14. Proceeds of Sale; Disposal of:--The proceeds of said sale, after deducting the costs of the proceedings, shall be invested by the Court in whole or in part for the benefit of the various parties and interests as their rights shall appear, or divided among the parties entitled according to their several interests and the rules of law and equity.'

This Court has uniformly held that while its jurisdiction is purely statutory, yet, jurisdiction having once been acquired, it has such incidental equity powers with respect to the rights of parties in the proceeds of the sale of real property as the justice of the cause may demand. Necessarily, these equity powers should be exercised only in determining those incidental matters having a direct relationship with the main proceeding which, in the case of a partition, means incidental rights of cotenants growing out of the property itself. Whitehead v. Whitehead, 181 A. 684, 21 Del.Ch. 436; First National Bank of Frankford v. Andrews, 26 Del.Ch. 344, 28 A.2d 676; In re Andrews, 3 Terry 376, 34 A.2d 700; In re Burton's Estate, Del.Orph., 59 A.2d 278; In Re Cochran's Estate, Del.Orph., 66 A.2d 497. Conversely, when the subject matter of the controversy does not arise out of the property partitioned, an Orphans' Court should refuse to assume jurisdiction. [33 Del.Ch. 353] This principle is best exemplified by the statement of the New Jersey Court in Hanneman v. Richter, 63 N.J.Eq. 753, 53 A. 177, 178, in denying incidental relief prayed for in a partition suit:

'none of them have any connection whatever with the land of which partition is sought in this suit, or the rents and profits thereof. No authority is

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See also Moseley v. Moseley, 240 Mass. 22, 132 N.E. 418.

In my judgment, the pleadings in this action demonstrate that the controversy here grows out of a dispute between the heirs with respect to rentals from the property here partitioned. It is a dispute directly related to the subject matter of the partition proceeding, namely the property. I am of the opinion, therefore, that whether or not there are other actions at law available to these partitioners wherein this controversy could be settled, this Court, having jurisdiction over the partition matter, may ...


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