by John Marshall Harlan

“ A partition severing the unity of possession among the heirs, and investing each with a right, as against the others, to the exclusive possession and ownership of distinct parts of the estate, could not, it is insisted, have been constitutionally effected by proceedings in a probate court. ”

“ Such legislation, we suppose, has its origin in the belief that it is convenient, if not desirable, for all concerned in the estate of a decedent, that the same court which supervises the final settlement of the accounts of a personal representative, and ascertains and declares the interests of heirs in such estate as may remain after the demands of creditors are satisfied, should have the power to make partition. ”

“ The supreme court is invested with appellate jurisdiction in all cases in equity; in all cases at law involving the title or possession of real estate, or the legality of any tax, impost, assessment, toll, or municipal fine, or in which the demand, exclusive of interest, or the value of the property in controversy, amounts to three hundred dollars; in all cases arising in the probate courts ”

“ In a large number of the states, as the citations by counsel of statutes and decisions show, probate courts were, and are, invested with power to make partition, among heirs or devisees, of estates coming within their cognizance for settlement and distribution. ”

“ The county courts shall have original jurisdiction of actions of forcible entry and detainer, of proceedings in insolvency, of actions to prevent or abate a nuisance, and of all such special cases and proceedings as are not otherwise provided for; and also such criminal jurisdiction as the legislature may prescribe. They shall also have appellate jurisdiction in all cases arising in courts held by justices of the peace and recorders, and in such inferior courts as may be established in pursuance of section 1 of this article in their respective counties. ”

“ Higley to be the almost uniform rule, among the people who make the common law of England the basis of their jurisprudence, to have a distinct tribunal for the establishment of wills, and the administration of the estates of men dying either with or without wills, which tribunals are variously called 'prerogative courts,' 'probate courts,' 'surrogate courts,' 'orphans' courts,' etc. ”

“ Frank, those tribunals may exercise whatever powers the legislature may, in its discretion, confer upon them, within the limits of such jurisdiction as usually pertains to probate courts. If, at the time the constitution of California was adopted, the partition, by probate courts, among the heirs of a decedent, of undivided real estate, was unknown in the jurisprudence of this country, there would be ground, under the doctrine of Rosenberg v. ”

“ We do not think that such a result could have been intended.' There are no other questions in the case which we deem it necessary to discuss. We find no error in the judgment below, and it is affirmed. ”