Succession of Rose

[421] The opinion of the court was delivered by Nicholls,.O. J. The decree of the District Oonrt sought to be obtained by Mrs. Joan Laing was one appointing herself admininistra-trix of the succession of William Rose. She assigned merely as “grounds'’ upon which she based her application to that effect, that that succession was in debt (owing to herself, as the widow of the deceased, in necessitous circumstances, one thousand dollars) ; that she, as such widow, was entitled to the appointment. Opponent denied the necessity for an administration. In the event the court should order the appointment of an administratrix, she advanced her own right of preference, as the child of the deceased, to the appointment. Subsidiarily she denied that the applicant was the widow of William Rose, urging, for reasons assigned, that the marriage between her and her father was absolutely null and void. The court heard evidence in support of the attack upon the marriage. The judgment of the District Court was to the effect that an administration was necessary, that opponent was entitled to be appointed administra-trix, that the marriage between applicant and William Rose was legal. Opponent appealed, and, uncertain to which court the appeal was returnable, obtained a double order of appeal, one to the Court of Appeals of the Second Circuit', the other co this court. The appeal to the Court of Appeals was made effective by furnishing bond; that to this court under that order was not followed up. The Circuit Court affirmed the judgment of the District Court as to the necessity of an administration, and as to the right of preference of Mrs. Doles, the opponent, as the daughter of the deceased, over tbe applicant, even assuming her to be (as she claimed to be) the widow of Rose. It declared that there was, therefore, no necessity for passing on the question as to the status of applicant as the widow of Rose. It further .declared that even were the determination of that question necessary, that court was without jurisdiction ratione materias to decide it, as in matters of nullity of marriages the Supreme Court had exclusive appellate jurisdiction. It therefore declined to pass upon that issue. Opponent then obtained a second order of appeal returnable to this court, and seeks to have this court reverse the judgment of the District Court declaring Joan Laing to be the widow of William Rose. The appeal is taken upon the theory, obviously, that the decision of the District Court upon that question would become res judicata in subsequent litigation if not set aside. [422] The judgment of the District Court only partially sustained the opponent, Mrs. Doles, in her contentions. She had the right to appeal, even though the court decreed her to be entitled to a preference over Mrs. Laing in the appointment of an administratrix. Oger vs. Daunoy, 7 N. S. 657; Hewes et als. vs. Baxter, 45 An. 1049; Police Jury vs. Succession of McDonogh, 8 An. 362; Municipality vs. Duncan, 2 An. 182. She appealed from the judgment in its entirety. The effect of the appeal was to open all the issues determined by the lower court, certainly all those decided adversely to the appellant, and to keep them open so long as the judgment of the District Court in respect to them should not be affirmed. The judgment of the District Court in reference to the status of Mrs. Joan Laing was never passed upon by the Court of Appeals further than to be declared by the court to have been and still to be an unnecessary issue of the case. The court declined to adjudicate upon the subject. The question, therefore, after the decision of the Court of Appeals, remained as the appeal had placed it — an open question. Lacroix vs. Menard, 7 N. S. 347. The motive, therefore, which impelled appellant to take the present appeal rested upon an erroneous assumption. But even had the issue been presented under circumstances such as would have made it essentially necessary to be passed upon for the purpose of a decision between the parties contending for appointment as administrator, as would have been the case had the contest been between the children of the same father by two marriages, and the absolute nullity of the second marriage had been set up, an appeal from a decision of the District Court sustaining the legality of the second marriage - and bringing up the decision it rendered in respect to the particular person it appointed administrator would not lie to the Supreme Court where the value of the succession was below the appellate jurisdiction of that court, as in this case here. The value of the succession would determine the appellate jurisdiction and not the ruling of the District Court upon a matter merely incidentally raised and determined in the District Court for the purpose of reaching a conclusion upon a matter touching the administration of the succession. It is a matter of frequent occurrence for a court of limited or special jurisdiction to pass incidentally upon a subject when it would not be authorized to do so if it had been pre [423] sented to it for adjudication in a direct' action; for instance, it has been held that though Probate Courts could not try titles to real estate and decide directly on their validity, yet when the question arises collaterally and its examination is necessary to arrive at a correct conclusion in matters of which it has jurisdiction, it must necessarily take cognizance of such title, Quando lex, aliquid concedit concedere videtur et id per quod devenitur ad illud. See Reels vs. Knight, 5 N. S. 10; Baillio vs. Wilson, 5 N. S. 217; Gill vs. Phillips, 6 N. S. 305; Williams vs. Bank, 7 La. 378; Henry vs. Keays, 12 La. 214; Succession of Goodrich, 3 Rob. 100; Penny vs. Weston et als., 4 Rob. 165; Babin vs. Nolah, 4 Rob. 278; Tutorship of Francis Hacket, 4 Rob. 290; Succession of Durnford, 8 Rob. 488; Orr vs. Thomas, 3 An. 582. When a court, in order to thus “reach a correct conclusion in matters of which it has jurisdiction” passes upon questions which would be dehors its jurisdiction if presented directly to it for adjudication, it is the character of the decision finally reached, based upon this incidentally determined question, and not the decision upon the question collaterally raised and passed on, which fixes and settles questions of appeals arising out of it. If the circumstances were such as to make an appeal from this ultimate conclusion (if it may be so styled) *of the District Court returnable to the Court of Appeals, this incidentally decided question would be embraced as one of the issues to be passed on incidentally in the Court of Appeals, just as it was and for the purposes it was passed on in the lower court. Of course, there would be no necessity for that court to pass upon it if it had been or should be an irrelevant or unnecessary issue. The question or issue thus incidentally thrown into another pending issue, solely for the purpose of determining conclusions to be reached upon the latter, has to be kept throughout the case in its appropriate place and not allowed to have a greater scope than that for which it was presented. Presented as an incidental question, it has to be so dealt with throughout. It can not be detached from the issue of which it formed a part and dealt with as if it had been made the subject of a separate and independent substantive cause of action. Appellant asks us to reverse the judgment of the District Court adjudging Mrs. Joan Laing to be the widow of William Rose. We find that the question was only incidentally raised in the District [424] Court as connected with another, and the real issue in the case. That main issue has not been brought before us, and can not be, as the value of the succession is below our jurisdiction. We would only be .authorized to deal with the question of the nullity of the marriage between William Rose and Joan Laing in its relation to the determination of the question whether Mrs. Joan Laing could, as the widow of Rose, legally claim to be appointed administratrix of his •succession. The issues of the case can not be split and divided. The incidental question accompanies the main issue, and the main issue, as we have said, is not before us. Under such circumstances, there is nothing upon which we can be called to pass. The appeal is dismissed.