Murphey's Heirs & Devisees v. Murphey

Chief Justice Ewing

delivered the opinion of the Court.

Polly Motrphey, a resident of Virginia, claiming to be the widow of Peyton Murphey, deceased, by her agent, moved the Cumberland County Court to appoint commissioners to assign her dower in the real and personal estate of the said decedent. The heirs and devisees of the decedent appeared and objected to the proceedings on ■several grounds, two of which only we will notice:

1st. That security for costs had not been given, and their motion requiring security was overruled.

2d. That under the circumstances proven, the Court had no jurisdiction of the case.

1st. The statute was intended to secure to defendants the costs which they might be compelled to incur in any suitor judicial proceeding against them, as well as to the officers of the Court the fees for their services, and should be liberally construed, so as to apply to any motion or suit in any form, as a judicial proceeding, in which costs may be incurred or services rendered. We think, therefore, that the plaintiff in this case should have been required to give security for costs.

2d. We also think, from the defence made and facts' proven, that the County Court had no jurisdiction of the case. The grounds set up in defence, and the proof adduced to establish them, tend to show, that some twenty Sve years ago, the plaintiff was reputed 'to be 'the wife of the decedent, and about that time left his bed and board, •and facts are proven tending to show that she was indulging in too great intimacy with other men, and in a short ■time went to Virginia, where she remained and still remains. That a will was made -by the decedent, which was duly-established and recorded, and his-estate divided -by a proceeding in -chancery, before this motion -was ■made.

■Harlan fy Craddock for appellants.

We cannot believe that it was the intention -of the 'Legislature by the act of 1803, (1 Stat. Laws, -596,) to confer-on the County Court jurisdiction to try such grave matters as those involved in this -case, and to settle rights so-important, and especially as jurisdiction is given to the Circuit Comts over the same subjects. This Court •say, in the case of Rintch vs Cunningham, (4 Bibb, 462,) in giving'construction to the said act, "Although its lan■guage is general, yet we apprehend, from the very nature ■of the provision, the power of the County Court was intended by the Legislature, -to be confined to the assignment of dower in those cases in which the husband has •died seized, and the right of dower is admitted or notion■Iroverled.” The reasons given by the Court in support ■of the construction given to the act, are entirely satisfactory, and are as applicable to this «ase as to the case then before the Court.

The order of the County Court appointing commissibn■ers to assign dower is, therefore, reversed, and -cause remanded, that the-order may be set aside -and the motion -dismissed.