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VAN NESS V. VAN NESS, 47 U. S. 62 (1848)

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Van Ness v. Van Ness, 47 U.S. 6 How. 62 62 (1848)

Van Ness v. Van Ness

47 U.S. (6 How.) 62


The Act of Congress passed on 27 February, 1801, 2 Stat. 103, authorizes a writ of error from this Court to the Circuit Court for the District of Columbia in those cases only where there has been a final judgment, order, or decree in that court.

Where the orphans' court directed an issue to be sent for trial in the circuit court, which issue was "whether the petitioner was the widow of the deceased or not," and the circuit court proceeded to try the issue, and the jury, under the instructions of the court, found that the petitioner was not the widow, exceptions to these instructions cannot be reviewed by this Court on a writ of error.

The certificate of the finding of the jury, transmitted by the circuit court to the orphans' court, was not such a final judgment, order, or decree as is included within the statute. After the reception of the certificate, the orphans' court had still to pass a decree in order to settle the rights of the parties.

All the circumstances of the case are fully set forth in the opinion of the Court, as delivered by MR. CHIEF JUSTICE TANEY, from the commencement of which the Reporter extracts the following statement.

A motion has been made to dismiss this case, which is brought here by writ of error directed to the circuit court for Washington County, in the District of Columbia.

The case is this. John P. Van Ness, of the same county and district, died intestate, and letters of administration were granted by the orphans' court to Cornelius P Van Ness, his brother, who is the defendant in error.

Shortly after the letters were granted, Mary Ann Van Ness, the plaintiff in error, filed her petition in the Orphans' court, alleging that she was the widow of the deceased, and praying that the letters granted to the defendant should be revoked, and administration granted to her. The defendant answered, denying that she was the widow of the deceased. The right to the letters depended upon this fact; as by an act of assembly of Maryland passed in 1798, and adopted by Congress when it assumed jurisdiction over this district, the widow is

Page 47 U. S. 63

entitled to letters of administration, in preference to any other person, where the husband dies intestate.

This act of assembly, 1798, ch. 101, subchap. 8, sec. 20, and subchap. 15, sec. 16, 17, makes it the duty of the orphans' court in a case like this, if required by either party, to direct an issue to be sent for trial to any court of law most convenient for trying it, and the court to which it is sent is authorized to direct the jury, and to grant a new trial if it thinks proper, as if the issue were in a suit therein instituted; and upon a certificate from such court, or a judge thereof, of the verdict or finding of the jury, under the seal of the court, the orphans' court is directed to give judgment upon such finding. It is unnecessary to give the words of the act. We state its provisions only so far as they relate to the case before us.

When the answer of the defendant came in, the orphans' court, upon the motion of the plaintiff, ordered the following issue to be made up and sent to the Circuit Court for Washington County, to be there tried; that is to say, "whether the said Mary Ann Van Ness be the widow of the said John P. Van Ness or not." No depositions or other testimony were taken on either side in the orphans' court.

The circuit court proceeded to the trial of the issue, and in the course of the trial sundry directions were given to the jury, to which the plaintiff excepted; and finally, as appears by the eleventh exception, the court instructed the jury that there was no evidence from which they could find that the plaintiff was lawfully married to John P. Van Ness, the intestate. Under this direction, the jury found by their verdict that Mary A. Van Ness was not the widow of the late John P. Van Ness, and this finding was, by order of the court, certified under seal to the orphans' court.

This is the case before us, upon the record brought here by the writ of error, and the question to be decided is whether this Court can take cognizance of the case and inquire whether error has or has not been committed by the circuit court in giving the instructions under which the verdict was found.

Page 47 U. S. 67

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