Longley v. Longley

Haskell, J. Petition for partition by the widow of Josiah P. Longley, who died the 24th October, 1897, seized of the premises of which partition is sought. I. The jurisdiction of this court is denied. Partition of lands held in common may be had either at common law or under the statute, R. S., c. 88. The act of 1897, c. 196, gives a widow, free from the payment of her husband’s debts, one-third of the real estate, of which he was seized during coverture, in fee. The petitioner, therefore, by the death of her husband, became seized in fee of one-third, at least, of his lands as tenant in common with others. She had a right of entry therein, and asks to have her one-third set out to her in severalty. We see no legal objection to the prayer of her petition. She is the owner of one-third of the common lands. No matter how she may have acquired her title. She has it, and may hold and enforce it just the same as any other tenant in common may do. Sears v. Sears, 121 Mass. 267, seems directly in point. There, a widow took a moiety of certain land for life in lieu of dower, and the court held that she might have partition of the same in the supreme judicial court, notwithstanding she had a like remedy in the probate court; tbat the remedies were concurrent, and that she might avail herself of either one. Allen v. Libbey, 140 Mass. 82, held that the heir might have partition against the widow, who held one-half for life only. The widow had an immediate right of entry into one-third of the lands of her husband and was therefore entitled to partition [398] thereof in severalty. A mortgagor in possession, who is not a tenant at will of the mortgagee, may have partition. Call v. Barker, 12 Maine, 320; Upham v. Bradley, 17 Maine, 423. The object of partition is a division of the estate between the legal owners of it regardless of equitable claims. Tilton v. Palmer, 31 Maine, 486. Semble, that where a widow takes one-half under the statute of 1895-7, but only one-third free from the debts of the husband, she would be entitled to partition of the half to her, subject to a lien for creditors upon one-third of it. That third, or one-sixth of the whole, might be sold in administration for the payment of debts, giving the purchaser thereof a right to partition of the same; but, until sold, the legal title thereto remains in the widow, and she has a right to immediate entry therein, hence partition thereof, for non constat that it ever will be sold for the payment of debts. In the case at bar, however, no such question arises, for the petitioner became seized of one-third only. We think the petition may be maintained. II. The constitutionality of the act of 1897, exempting one-third of decedent’s lands from the payment of debts, is denied. That question cannot arise here, for the widow’s third has not been subjected to the payment of debts, and may never be. Up til it has been, she is entitled to the possession and income thereof, just the same as an heir would be. The fee is in her, and she has a right of entry therein and therefore may have partition thereof as has already been shown. This question would arise, if at all, inter alios whose rights should not be precluded here. Exceptions overruled.