Gates v. Treat

- Himman, J. That the court of probate had power, by vir- — tue of the statute relating to the settlement of estates, to make partition of the lands in controversy among the heirs of Miner Robins, has not been, and cannot be, denied. This power is expressly given to that court; and the mode in. which it shall be exercised, through the intervention of freeholders to be appointed to make the distribution, is specifically pointed out in the statute. St at, 23-1. lit. 31. c. 1. s. 29. (ed. 1838.) It is equally clear, that the decree of a court of probate, in a matter within its jurisdiction, is as conclusive upon the parties, as the judgment or decree of any other court; and the superior court, as a court of equity, has no more power to correct, alter, or vary it, than it has to alter or vary the judgments of any other court in the state. The statute, having provided for the correction of any erroneous decree, by appeal, unless that remedy is taken, the decree must stand. Goodrich v. Thompson, 4 Day, 215. Holcomb v. Phelps, 16 Conn. R. 127. and authorities there cited. As, then, the court of probate had jurisdiction to make partition of these lands between the heirs, and as the decree of probate can not be altered but by appeal, the only question in the case, is, whether the distribution which has been made, can be separated from the decree of probate approving it, so as to give the superior court any jurisdiction over the acts and proceedings of the distributors, which it must be admitted it can not have over the decree itself. The claim of the plaintiff is founded upon the idea that this can be done ;— that, the superior court can correct a mistake, which the distributors made, in making their report, although his counsel admit, that the decree of probate can not be touched; and they say, that their bill does not ask that the decree of probate be altered at all, but only, that the mistake in the distribution be corrected. But the distribution being the foundation on which the decree rests, and being made effective by it, becomes of course a part of it. The one, without the other, is a mere nullity. When, therefore, the bill speaks of a mistake in the report, and asks for its correction, it as effectually asks for the alteration and correction of the decree, as if the request was made in terms. Besides, both these parties purchased of the several heirs, by metes and bounds, their several parcels of the land, as distributed to them; and as the convey393 unce of a tenant in common, by metes and bounds, of a part of the common estate, is void, they have no title to any of the property, but upon the ground that the distribution has been established by the court of probate. The title, then, of the parties here, rests upon the distribution as accepted and approved by the court; and to alter the distribution now, is to make the decree approve of a different division of the land, from the one which was before the court, when it was passed upon ; nor can we know that the report would have been accepted, had it been in fact as the plaintiff insists it ought to have been. Would it be contended for a moment, that upon an application like this, the superior court could alter a report of auditors, which had been returned to and accepted by the county court? But if that can not be done, for the same reason this distribution can not be corrected. We do not think, therefore, that there is any error in the judgment complained of. In this opinion the other Judges concurred, except Church, J., who was absent. Judgment affirmed.