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January 1, 1848


THIS case was brought up, by writ of error, from the Circuit Court of the United States for the District of Columbia, sitting for the county of Washington.

The opinion of the court was delivered by: 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 Or hans' 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 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.

The cause was argued upon a motion to dismiss the writ of error for want of jurisdiction. Mr. Coxe and Mr. Bradley for the motion, and Mr. May and Mr. Brent against it.

Mr. Coxe, in support of the motion, explained the laws of Maryland upon the subject, and referred to the act of 1798, in 1 Dorsey's Laws of Maryland, p. 414, subchap. 15, sec. 17, and also to p. 394, subchap. 8, sec. 20.

The certificate directed to be transmitted to the Orphans' Court is altogether different from chancery practice, where the verdict is merely to inform the chancellor, who may set it aside and direct a new trial. Mr. Coxe referred also to the cases in 1 Peters, 562, 565; 2 Peters, 243; 5 Howard, 118; and 3 Howard, 681.

Mr. May, against the motion to dismiss.

The widow in this case filed a petition praying for letters of administration to herself, and for a revocation of those previously granted to the brother. If she was the widow, she was entitled to letters in preference to any one else. Act of 1798, chap. 101, subchap. 15, sec. 17; 2 Harris & Gill, 51.

After receiving the certificate from the Circuit Court, the Orphans' Court dismissed her petition. We took an appeal from this dismissal, but the Circuit Court affirmed it.

It is evident that the appeal carried up nothing but the mere certificate, and under it it was impossible again to bring before the Circuit Court the instructions which had been given at the previous trial. The Orphans' Court never saw these exceptions. If we could have got them into the record which was transmitted from the Circuit Court to the Orphans' Court, then an appeal from the order of dismissal would have carried them again to the Circuit Court and from that court to this. But we could not do it; and if this writ of error should be dismissed, it will follow that instructions were given by the court below which were decisive of the result, and yet there is no mode of having such instructions reviewed by this court. The certificate either ...

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