Pinkham v. Gear

⅛1 chaRdson, C, J. delivered the opinion of the court. The statute of Feb. 3, 1789, entitled “ an act ordering “ the descent of intestate estates, and empowering the judge £t of probate to settle the same accordingly,” (section 4, has always been- understood to give the judge of probate power to cause partition to be made among the heirs, and the dower of the widow to be assigned her, in all real estate, of which an intestate died seized. 1 N. H. Laws 208. But the court of probate has not been considered as having jurisdiction to assign dower, where the intestate had conveyed the land in fee and in mortgage. 13 Mass. Rep. 413.—9 ditto 9. And the revised statute of 182.2, (cap. 31. sec 28,) expressly confines the jurisdiction of the judge of probate, in relation to the assignment of dower, to cases, where the husband died seized aud possessed. We are therefore of opinion, that the judge of probate had no authority to assign the locus in quo to Susanna Pmkham as her dower, the husband having conveyed the land in fee and in mortgage. [168] But the jury were directed, that if the defendant agreed, that Susanna Pinkhum should take her dower by the assignment of commissioners appointed by the judge of probate, he was bound by the agreement, whether he knew that the judge of probate had Jurisdiction, or not ; and it is contended, that they were misdirected in this respect. But, we apprehend, it is well settled, that no man can avoid his -contract by an allegation, that he made it under a misapprehension of the law. 2 N. H. Rep. 340, Ladd vs. Kenney. It is also urged in this case, that the jury were misdirected, because they were instructed, that if the defendant verbally assented, it was sufficient ; and that this was tantamount to telling the jury, that dower might be assigned by parol; and we think, that the assignment in this case, a-inounts to nothing more than a pawl assignment. Yet, still, in our opinion, such an assignment is sufficient. No estate or interest passes by the assignment, and a deed, or other writing is unnecessary. 1 Pickering's Rep. 189, Conant vs. Little.—2 M. H. Rep. 48. Judgment on the verdict.