Smith's Estate, In re
Citation | 33 Del.Ch. 350,93 A.2d 314 |
Parties | In re SMITH'S ESTATE. Orphans' Court of Delaware, New Castle County |
Decision Date | 15 December 1952 |
Court | Family Court of Delaware |
Albert J. Stiftel, Wilmington, for Nellie T. Smith.
John M. Bader, Wilmington, for Mary Ellen Berry.
David B. Coxe, Jr., Wilmington, for Anne P. Elliott.
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:
Section 3747 of the Revised Code of 1935 further provides:
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. 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:
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...
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