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HARDENBERGH V. RAY, 151 U. S. 112 (1894)

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U.S. Supreme Court

Hardenbergh v. Ray, 151 U.S. 112 (1894)

Hardenbergh v. Ray

No. 113

Argued December 12-13, 1893

Decided January 3, 1894

151 U.S. 112


When the jurisdiction of a circuit court has fully attached against the tenant in possession in an action of ejectment, the substitution of the landlord as defendant will in no way affect that jurisdiction, although he may be a citizen of the same state with the plaintiff.

By the laws of Oregon in force in 1872, a testator was authorized and empowered to devise after-acquired real estate.

A will in Oregon, duly executed May 15, 1872, and duly proved after the testator's death in 1886, in which he devised to his sister "all my right, title, and interest in and to all my lands, lots, and real estate lying and being in the Oregon" except specific devises previously made, and also "all my personal property and estate," shows an intent not to die intestate, and passes after-acquired real estate.

The facts are stated at length in the opinion of the Court. It is sufficient here to say that Peter De Witt Hardenbergh, of Portland, Oregon, made his will May 15, 1872, in form as prescribed by the laws of the state to pass real estate, that he died in 1886, and that the will was duly admitted to probate, and remains in full force. In 1882, he acquired a tract of land in Portland, of which he was seised and possessed at the time of his death. The question at issue in this case was whether this after-acquired estate passed by a clause in the will devising to his sister "all my right, title, and interest in and to all my lands, lots, and real estate lying and being in the State of Oregon." The action to test this question was ejectment, brought by the brother of the testator, a citizen of New York, against tenants in possession. The devisee having died, her heirs were, on their own motion, substituted as defendants in the place of the tenants. One of these heirs was a citizen of New York. The statute in force in Oregon at the time of the making of the will and of the death of the testator provided that

"every person of twenty-one years of age and upwards, of sound mind, may, by last will, devise all his

Page 151 U. S. 113

estate, real and personal, saving to the widow her dower."

The court below held that it had jurisdiction in spite of the fact that the plaintiff and one of the defendants were citizens of the same state, and held that the after-acquired property passed to the sister under the will. 33 F.8d 2. The plaintiff sued out this writ of error.

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