Bull v. Nichols

The opinion of the court was delivered by Bennett, J. This case comes up by an appeal from a decree of the probate court, accepting the return of the commissioners, dividing the estate of Stephen Nichols among the devisees. This division having been made before the Revised Statutes went into operation, the questions must be decided under the law then in force. It is objected to the jurisdiction of the probate court, that, by the laws in force at the death of the testator, in 1793, the devisees could only have compelled a division in the supreme court. If this were so, still the legislature might change the tribunal for making the partition, as the right would not be thereby affected, but simply the mode of seeking the remedy. It is also said that the jurisdiction of the probate court, under the act of 1821, was defeated by the alienation of four of the devisees, of their shares, to Nehemiah Bull, the intestate, and the husband of the appellant. This act provides that the probate court may, upon the application of any devisee, order a division of any real estate, held by such devisee in common with any other devisee; and the Revised Statutes provide, expressly, that the alienation of one of the devisees shall not affect the jurisdiction of the probate court. The statute of 1821 has long received a practical construction in the probate courts; and they have, as we understand, proceeded to cause divisions to be made among heirs, and devisees, though, at the time of the division, some third person had become interested in the estate, by purchase. Under these divisions in the probate office, there is a large amount of real estate held in severalty; and we should be slow to disturb such divisions, unless constrained to it. In Pond v. Pond et al. 13 Mass. R. 413, it is true, under a statute similar to ours of 1821, it was held the probate court had no jurisdiction to make partition, after there had been an alienation, made before the' commission had been prayed out. If, however, the commission had been issued before the alienation, the same court will proceed, notwithstanding such [335] alienation. Cook v. Davenport, 17 Mass. R. 347. The case of Pond v. Pond does not seem to have any very good reasons to support it; and we are not disposed to depart from the practical construction which our statute has received. The course has been to make the partition directly among the heirs or devisees, and leave the shares thus set out, to the effect of the alienation. This relieves the court of probate from determining questions that may arise from the conveyances or assignments of any of the heirs or devisees — which is much dwelt upon, in the case of Pond v. Pond, as a reason why the probate court should not have jurisdiction. It is also said that the commissioners ought not to have appraised the property at its then value, including the betterments put upon it by Nehemiah Bull. But this was right. If Bull made betterments upon the land, while it was undivided, this gives him no lein upon the land itself for his indemnity. He must be satisfied with the remedy which the law furnishes in other like cases. These are all the exceptions now properly before this court. The appellant has, in argument, insisted upon the want of proper notice; and also to the insufficiency of the commissioners’ return, in not setting out by metes and bounds the several shares set out to the four devisees, from whom the appellant’s intestate, Nehemiah Bull, purchased. But the appellant must be confined to her written objections, or exceptions, to the report, to which the appellee has demurred ; and the cause must stand or fall upon them. But as the appellant’s intestate had purchased in all the shares, except the one set to Barbara Nichols, which is set out by metes and bounds, no practical inconvenience will result, in this case, from a want of a more certain description. We affirm the decree of the court of probate, with costs,