White v. Clapp

Hubbard, J. It is admitted, by both parties, that the judge of probate had a general jurisdiction in regard to the partition of real estate among the heirs or devisees of deceased persons, and that, upon a proper application to him, he could have lawfully directed a partition of the estate of Timothy White. It appears that there was a request to him to have the estate divided among the heirs, and that a committee was duly appointed for that purpose, who notified, met, and heard the parties, and made a return of their doings. By this return, it appears that the estate could not be divided, and set off to all the heirs, without great injury to the estate, and that, by reason of it, they set off, in their partition, the greater part to the eldest son, Timothy, and directed him to make sundry payments in money to the other heirs, for owelty of partition. It is objected to this partition, that it does not sufficiently appear that the estate could not be divided without great prejudice to or spoiling the whole of it, and therefore the judge of probate ought not to have sanctioned the assignment made by the commissioners. See Hunt v. Hapgood, 4 Mass. 121. Smith v. Rice, 11 Mass. 507. But we are of opinion that it sufficiently appears, by the act of the heirs, that such an assignment to the eldest son was agreeable to their wishes. This, however, does not apply to the share of Joseph White, one of the demandants, who was then a minor, and was represented by his guardian. While the statute is to be construed with a strict regard to its provisions, yet where the parties waive their rights, with a knowledge of what those rights are, they cannot after-wards insist upon them when the rights of others are affected. To parties thus consenting the maxim well applies, volenti non fit injuria. It is contended also that this division is void because there is no decree of the judge making the partition. This objection is founded upon the following observations of the court in the case of Thayer v. Thayer, 7 Pick. 214 : “ The judge merely certifies that he approves of the report of the commissioners, and [370] orders it to be recorded. We are inclined to think that, in a matter of so much importance, there ought to be a decree assigning the shares respectively, and that notice should be given, as contended for on the part of the petitioners. We do not, however, decide these points, as many other estates, which have been already settled, might be affected by the decision,” • The language of the judge of probate, in that case, was as follows: “ This return being this day examined by me, I do approve thereof, and order the same to be recorded.” But in the present case, the decree of the judge is more definite. It is this : “ The foregoing division of the real estate of Timothy White, deceased, having been sworn to, as certified on the warrant, and the same being duly considered, is hereby ratified and confirmed.” The judge here certifies that the- division is duly considered by him, and he ratifies and confirms it. Though there is no regular assignment of the several parcels according to the partition, yet it is a decree upon the return, and the parties being present and approving the same, we think the want of a more formal and technical decree cannot now be held to invalidate the proceedings. But an objection of a more weighty character is urged against this partition, to wit, that the heirs, to whom money was to be paid to equalize their shares, did not receive it at the time, nor did the son, to whom the assignment was made, give any sufficient security therefor, as required by the statute. This point was fully considered by the court in the case of Newhall v. Sadler, 16 Mass. 122 ; and it was decided that such an assignment by the judge of probate, without requiring sufficient security of the heir, to whom the estate is assigned, for the payment of the money awarded to the other heirs, may be avoided by them without an appeal from the decree. Of the correctness of this decision we do not doubt. The effect of holding otherwise would be, that some of the heirs might be deprived of their estates, without any act of theirs, and without an adequate consideration. And if the case rested here, we could not confirm this partition. But the judge of probate having jurisdiction of the subject, we consider that such a decree is not [371] simply void, but only voidable, and therefore, in order to affect it, some steps must be taken by the heirs to set it aside; and so also, it not being void, they may confirm the same, either by matter of record, or in pais. And we are of opinion that the parties have ratified this partition by acts which cannot now be avoided by them. They assented, at the time, to the terms of the partition, and they have since either received the money awarded to them by the assignment, or have accepted an equivalent therefor, which is a ratification. This was the case with the minor, after he came of age, as well as of the others. In regard to Mrs. Damon, one of the heirs, we think no advantage can be taken, by either of these demandants, of the fact, as alleged, that she has not received the whole of the money assigned, though her right may not be relinquished. But the doings of the judge are only voidable, and will bind those who ratify them. Nonsuit confirmed