Lessee of MARY LOWBER, n. vs. DOE and CÆSAR BEAUCHAMP, n., 2 Harr. 139

By the Court: The Orphans’ Court, acting in rem, is one of peculiar and exclusive jurisdiction, and every one has a right to become a party to its proceedings, This defendant being excluded from becoming a party, the reason fails, and his rights are not to be bound by a decisión to which he was neither a party nor privy. The record is no evidence against him, and the plaintiff cannot recover, claiming, as she does, under that record. Huffington, for plaintiff. Bates and Frame, for defendant.

Judgment for defendant. fa) Note. — The petition of Mary Lowber to the Orphans’ Court for the assignment of dower, set forth that Jonathan Lowber died intestate, being seised of the land here in controversy ; that he left a widow, the petitioner, and three children, to whom said lands descended subject to dower; and prayed the assignment of dower. On the coming in of .the return, John Lewis and Caesar Beauchamp filed objections to its confirmation, stating themselves to be purchasers at sheriff’s sale, on execution process against Jonathan Lowber, of the land out of which dower was assigned.

But the court said that this proceeding by petition under the intestate law, was a proceeding against the heir; that the petition did not set out that any other persons were interested in the matter, nor seek to make them parties: that not being parties they were not affected by these proceedings; and that it would be safer to act only on the rights presented by the petition.

In all cases where the husband dies out of possession, the practice of the court requires a citation to purchasers or others in order to make them parties; but in proceedings against the heir third persons are not affected, and are not entitled to object. If they have the right to object, they are bound to do it, and the decree of the court binds them whether they objeet or not. And how are they to be notified? The petition does not set out their interest, and the court can order no citation. Are they bound to take notice of the application ?

It is better to regard the proceeding as affecting only the rights of the parties on the record; the heirs at law, and such others as the petitioner chooses to make parties by setting out their interest and issuing citation. The Orphans’ Court, for these reasons, refused to hear the objections of the purchaser, whose interest did not appear by the record, and could not be affected by the proceeding.