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TITLE CXII.

Stat. 1783, e. 36, s. 11.

Power of judges of probate to direct the mode of division.

PARTITION.

1. PARTITION of intestate estates among the heirs. 2. Partition of lands among devisees; or when a devisee is interested.

3. Proceedings when, in the partition of a deceased person's estate, any messuage, &c. shall be of greater value than either party's share in the estate divided.

4. Proceedings when, in the partition of a deceased person's estate, an interested party refuses to pay his proportion of the charges of partition.

5. Proceedings on application for partition.

6. Of the pleadings, trial, judgment and costs, in such

case.

7. Of the right of appeal in such case.

8. Proceedings, in such case, when any messuage, &c. shall be of greater value than either party's share in the estate divided.

9. Proceedings in such case, when any interested party refuses to pay his proportion of the charges of partition.

10. In what cases there may be a renewal of partition. (1)

I. Partition of intestate estates among the heirs.

The respective judges of probate, are directed, when they make out their warrants for the division of the real estate of any person dying intestate to and among the

(1) For further information on this subject, see title "JointTenants, Tenants in Common and Coparceners." See also title "Fences and Fence-Viewers."

heirs, or for assigning the widow's dower, where such estate, or any part thereof, lies in common or undivided with the real estate of any other person, to direct the committee, named in such warrant, first to sever and divide the intestate's estate from the estate with which it lies in common; (2) the said committee to give timely notice to all parties interested, to be present if they see cause; and such division, so made and accepted by the judge, and duly recorded in the probate office for the same county, shall be binding on all persons interested.

Ibid.

compos, etc. are inter

Where any minors, or persons non compos, or otherwise incapacitated to take care of their estates, are inProceedings when terested in either estates, or out of the government, minors or persons nor guardians shall be appointed over them, and some discreet person shall be appointed by the judge, to represent and act for such absent party before such division is made.

ested in the estate to

be divided

Ibid.

Persons interested to

order of division be

Before the order of such division issue, it must be made to appear to the judge of probate, that the several persons interested in such estate, if living within this be notified before the government, or the attorney of such as are absent, and issued. have attorneys residing within this government, have been duly notified of such partition, and have had opportunity to make their exception to the same.

Ibid. s. 5.

Proceedings when the

vided among all the

ry to the whole of

When the real estate cannot be divided among all the children, or their legal representatives, without great prejudice to, or spoiling the whole, the judge of probate estate cannot be dimay order the whole to the eldest son, if he accept the children without inju same, or to any other of the sons respectively, on his refusal, he paying unto the other children of the deceased, their equal and proportionable shares of the true value thereof, upon an appraisement, to be made by three disin

(2) In making partition of real estates of an intestate, the distributors are not obliged to divide and set out the whole estate in severalty; but may assign certain parts of it to two or more of the heirs to be holden in common.

Gordon et al. v. Pearson, 1 Mass. Rep. 323.

such estate.

Ibid. s. 6.

terested freeholders, appointed by the judge for that pur pose, and under oath; or giving good security to pay the same, in such convenient time as the said judge shall limit and appoint, making reasonable allowance in the interim, not exceeding six per cent. per annum. (3)

When the real estate of an intestate will conveniently accommodate more of the children than the eldest son,

(3) The power of the judge to turn the share of the land, descended to any heir, into money at an apprised value; and to com. pel him to take security for the payment, ought not to be extended by construction, beyond the manifest intent of the statute. The design of the act was to prevent an injury to all the heirs, by a minute division of the lands, by which they would be worth little to any heir. This power is therefore vested in the judge, to be exercised presently after the decease of the intestate, when the situation of the heirs will not be materially altered from the state in which the intestate left them, and when they would not be delayed in the use of their property, whether real or personal, longer than is deemed necessary to ascertain the claims of the creditors to the estate. On this principle, the money is ordered to be paid to the children or next of kin, and consequently to their executors or administrators, but not to any assignee in fact.

By the court, in Hunt v. Hapgood, 4 Mass. Rep. 120. But the widow's term in her dower may not expire until after many years, when the state of the intestate's family may be wholly changed by death, or their interests in his estate, including the reversion of the dower, alienated for a valuable consideration. It is not therefore within the intent of the statute that the dower, when it falls, should be settled on the eldest son, on his paying the other children the value of their shares in money. Indeed it is not uncommon for all the children to have alienated their estate in the dower, during the widow's life; and it may be added, that the clause in the statute of distributions, from which the power is supposed to be derived, directs the dower, at the expiration of the widow's term, to be divided as aforesaid, which must mean a division among all the children before directed, and not a settlement on the eldest son, by which any division is excluded. Ibid.

The judge has therefore no authority to settle the dower, after the expiration of the widow's term, upon one or more of the sons. or next of kin, to the exclusion of the others, and of those who may have purchased their estate therein. Ibid. 121.

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In what cases the

estate may be settled

upon one or more of

or his legal representatives, the judge of probate may settle the same on as many of the children, (preference being always given to the sons,) as it will accommodate, the next of kin. without prejudice to, or spoiling the whole; or, in case the intestate left no issue, the same may be assigned to one, or so many of the next of kin to the intestate, in equal degree, or their legal representatives, as such estate will conveniently accommodate without prejudice to, or spoiling the whole,(4) (preference being given to the male heirs among such as are of kin in equal degree.)

II. Partition of lands among devisees; or when a devisee is interested.

Ibid. s. 12.

When a devisee holds another.

When any devisee (or his guardian,) who holds any real estate, in partnership with any other person or persons, by force of any last will and testament, shall make in partnership with application to the judge of probate in the county where such estate lies, for a division thereof, it shall be lawful for such judge to order the whole of the real estate, so devised, (or that part of it the partition whereof is requested) to be divided to and among the devisees, in proportion, according to the will of the testator, by five or three good and discreet freeholders of the same county, to be appointed by and sworn before the said judge, to the due performance of that service; notice being first given to all parties concerned to be present at the mak

(4) In practice, the power of the judge has been frequently improperly exercised, by a miscontruction of the words, "without prejudice to, or spoiling the whole." These words import a case when the shares divided, from the nature of the estate, would be worth but little, as in the case of a dwelling-house, or some small parcel of land, the respective shares of which, holden in severalty, would be of much less value than when holden together. But the construction has in some cases been extended, with the design of making convenient farms for one or more of the children, uniting different and distinct parcels of land for this purpose, when a division among all the heirs would not have lessened in any degree, the profits which were received from the whole together. Ibid.

Ibid. s. 13.

When real estate

devised lies in com

mon with other estate.

Guardians to be ap

persons otherwise incapacitated.

ing of such partition, if they see cause; which partition or division being returned into the probate office, and approved by the judge, and there recorded, shall be valid in law to all intents and purposes, unless upon the appeal of any party aggrieved at the partition so made, the same should be reversed or altered before the supreme court of probate.

When it happens, that real estates devised by will, lie in common and undivided with other real estates; in every such case it shall be lawful for the judge to direct the freeholders, first to make partition between the estate given by will, and any other land or real estate lying in common therewith, in the same way and manner as is provided for dividing intestate estates from any other estates, with which they may lie in common: Provided, that no partition shall be made when the proportion belonging to the devisees, or any of them, shall, by the tenor of the devise, appear to be disputable and uncertain: Provided also, that where any of the interested are

ponie to minors and minors, or persons non compos, or otherwise incapacitated to take care of their estates, or out of the government, guardians shall first be appointed for such minors, or persons non compos, or otherwise incapacitated, and some discreet and disinterested person shall be appointed by the said judge, to represent and act for such absent party.

Ibid. s. 15.

III. Proceedings when, in the partition of a deceased person's estate, any messuage, &c. shall be of greater value than either party's share in the estate divided.

When any messuage, tract of land, or other tenements, shall be of greater value than either party's part or share in the estate to be divided, and cannot at the same time be subdivided, or part thereof assigned to one, and part to another, (without great inconvenience) the same may be settled or assigned to one of the parties, such party to whom the same shall be so assigned paying such sum or sums of money to such party or parties, as by means

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