Gilpin v. Brown

In neither of the two bills for partition filed in the court below was all of the real estate of the common ancestor included. He died seized in severalty of three *399tracts of land, and of undivided interests in two others. One bill was for the partition of the land held in severalty, and the other for that of the undivided interests.

The Act of March 13, 1847, P. L. 319, declares “The jurisdiction of the several orphans’ courts of this Commonwealth, in the partition and valuation of real estate, shall extend to any undivided interest, in fee simple, in any lands or tenements of which any person has died or shall hereafter die seized or possessed, as tenant in common or joint owner, with any other person or persons, as fully as if such decedent were solely seized or possessed thereof at the time of his or her death.” This is reenacted in section 1 of the Act of June 7, 1917, P. L. 337. The jurisdiction of the common pleas being concurrent with that of the orphans’ court in partition proceedings, what is necessary in the one is requisite in the other. In partition, whether in the common pleas or in the orphans’ court, it is “incumbent on the party instituting the proceeding, if practicable, to embrace the whole of the undivided realty within the jurisdiction or power of the court. There cannot be inquisitions upon it by parcels”: Stickles v. Oviatt, 212 Pa. 219. It was clearly practicable to include all of the real estate of the common ancestor in one bill in the court below, and it correctly so held. The two appeals were heard together, as the same question is raised in each case.

The decree dismissing each bill is affirmed, at the costs of the appellant.