2 Or. 336 | Or. | 1868
The petition does not show what progress has been made in the administration; whether any or what property, either personal or real, is comprised in the estate; whether any account has been rendered; whether debts exist, or whether any have been paid. The main question to be determined in this case is whether, under our statute, it is the duty of the County Court to determine what persons are
The Constitution provides that “ the County Court shall have the jurisdiction pertaining to Probate Courts, and Boards of County Commissioners, and such other powers and duties, and such civil jurisdiction, not exceeding the amount in value of $500, &c., as may be prescribed by law.” The appellant contends that the Constitution confers on the County Court the power here contended for, as a part of the jurisdiction pertaining to Probate Courts. In inquiring what was such jurisdiction, at the time of the adoption of the Constitution, we find in this connection that lands and tenements were deemed and treated as something distinct from the assets, which might go into the hands of the administrator; and that the distribution of real estate did not formerly pertain to the jurisdiction of Probate Courts. (2 Black. Com., 489; 1 Edward, 551; Griffith v. Buchan, 10 Barb., 432.)
At common law real estate descended to the heir, not subject to the control of the administrator; and such was the general rule in most of the States at the time our Constitution was adopted. Hence its distribution was not a matter pertaining to probate jurisdiction. In this State the power of the administrator to take possession of real property is not derived solely and directly from the Constitution. It is conferred by section 1088 of the Code, which authorizes the administrator to hold the temporary possession of real estate; and we think this power is not justified under the other clause relating to “ other powers and duties.” It cannot be maintained that if all that is provided in the statute, concerning the possession and distribution of real estate, was repealed, such repeal would be an encroachment upon, or diminution of “the jurisdiction pertaining to Probate Courts;” neither would that court then have any power to distribute real estate. .
This Code has provided a mode of proceeding for the partition of real estate, and evidently contemplated a proceeding by complaint in the Circuit Court, in which not only must
Judgment affirmed.