Richardson v. Reeves

Mr. Justice Robb

delivered tbe opinion of the Court:

The appellees insist that the order appealed from is not such a final order, judgment, or decree of the supreme court of the District, or of any justice thereof, as may be brought to this court for review under the law of its creation. (27 Stat. at L. 434, chap. 74.)

The subject-matter in controversy before the trial court was the validity of the will of John A. Brown. In the caveat as originally filed by appellant, she based her right to prosecute the contest upon her status as the lawful widow of said Brown. In her caveat as amended, however, she refers to the prior will by said Brown in her favor, and to the fact that she has petitioned for the probate of that instrument. The determination against her of the question whether she is the lawful widow of said Brown, does not terminate the contest between the parties on the merits of the case. The order appealed from is merely interlocutory,- and does not even settle the question of the right of appellant still further to object to the allowance of said will. It is but a step in the procéedings, and, as above- stated, by no means puts an .end to.the controversy between the parties.

In Dugan v. Northcutt, 7 App. D. C. 351, the legitimacy of the caveator, who claimed- to be the only child and heir at law of the deceased, was challenged on the question of his right to file a caveat. On appeal to this court it was held that the question was purely interlocutory, and that “however desirable it may be to have a final determination of this special question, we are unable to find any authority in the law that would give us the right to pass upon the question at this time.”

Benjamin v. Dubois, 118 U. S. 46—48, 30 L. ed. 52, 6 Sup. Ct. Rep. 925, arose on a motion to dismiss an appeal from a decree that the domicil of the testator was in the city of Washington, and that the court had original jurisdiction in the matter of his estate. • The court said: “The finding that such was his domicil settled the- disputed question of jurisdiction, but it *12 did not decree the payment ’Sf any money, which was the only purpose of the suit. It opened the way to that end, but nothing more;” See also: Life & Fire Ins. Co. v. Adams, 9 Pet. 571 -601, 9 L. ed. 233—244; Van Ness v. Van Ness, 6 How. 62—67, 12 L. ed. 344—346; Bostwick v. Brinkerhoff, 106 U. S. 3 , 27 L. ed. 73, 1 Sup. Ct. Rep. 15.

The order appealed from may or may not lead to the allowance of said' will.. Since that is the real question in controversy between the parties, it follows that the determination by us at this time of the question involved in' this appeal would be premature, and not decisive, of the real question in issue.'

The motion to dismiss must therefore be granted with costs, and it is so.ordered. Granted,..

An application by the- appellant for an appeal and writ of error to the Supreme Court-of the United States was denied by this- court November 19, 1909. Thereafter on application to the chief justice of that court a writ' of error was allowed, and it was issued November 29, 1909. .Subsequently it was- dismissed in that court on motion of the plaintiff in error.