
    CURTIS v. JENKINS ET UX.
    Upon application to tlie Orphans’ Court for the partition of real estate, the petition must not only allege that some of the owners are minors, but must name them and show which are minors, otherwise the proceedings will be set aside on Certiorari.
    
    On Certiorari to the Orphans’ Court of Mercer county. Edward Jenkins and wife presented their petition to the Orphans’ court of the county of Mercer, for the partition of certain real estate in the city of Trenton. The commissioners reported, that a division of the premises could not be made without prejudice to the estate, and the court thereupon ordered a sale. The proceedings were thereupon removed into this court by Certiorari.
    
    
      W. Hoisted for plaintiff.
    P. P. Vroom for defendant.
   Carpenter, J.

Although several reasons have been urged by the plaintiff for the reversal of the proceedings of the Orphans’ Court, I think it necessary to notice but one. The petition to the Orphans’ Court, after stating the different owners of the premises, of whom Mr. Jenkins was alleged to be one, then stated “ that some of the children and heirs at law of E. M. are minors under the age of twenty-one years.” That sonie of the owners of the premises, sought to be divided, should be minors, is necessary to give jurisdiction, to the Orphans’ Court; and which are minors as I apprehend, should be stated on the face of the petition. The Orphans’ Court, in order to assume jurisdiction, must necessarily adjudicate that the facts stated in the petition are true; but the petition ought to show which are minors, so that the fact of some being minors may be controverted if necessary. So are the precedents: Elm. F. 338, 340, 341; Griff. Treatise 242, Ed. 1813. For this reason the proceedings and decree of the Orphans’ Court must be set aside.

Proceedings set aside.

Horeblower, C. J. concurred. The other Justices did not hear the argument, and expressed no opinion.  