Ashley v. Brightman
38 Mass. 285
| Mass. | 1839
Shaw C. J.

delivered the opinion of the Court. In the present case the petitioner claims as assignee and grantee under Nathan Brightman, of the estate devised to him by his grandfather. This conveyance was made before the decease of his *287brother Henry, and did not include that part of the estate of his grandfather, which was devised to Henry, and which Nathan took as heir of Henry. This petition is not open to the objection made in the cases of Blossom against Brightman, of claiming partition of a part, by metes and bounds, of a larger estate in common. But the Court are all of opinion, that the petitioner is not entitled to have partition, because be avers in his petition that he is seised as tenant in common with George Brightman, Bradford Brightman and others unknown; and it appears by the report, that the order of notice, to all persons interested to appear and show cause, was never published in the manner directed by the court, to which the petition was returnable. It is therefore clear that those who do not appear, would not be bound by a judgment in this case, and it does appear that Hannah Brightman, who took an estate for life in one third, and who therefore is interested in the partition, is still living. It was stated in behalf of the petitioner, in answer to this objection, that the widow Hannah Brightman was not opposed to the prayer of the petitioner for partition, and if need be, that she would appear and consent to the proceeding. But if this were done, it would not remove the impediment. By the same will, under which the petitioner claims, through Nathan, one of the devisees, four other grandchildren were named as devisees. Their estate, or that of some of them, may have been alienated by descent, by deed or levy of execution, and so may that of the widow. The petitioner himself claims by deed from one of the devisees. We think it clear, therefore, that unless the notice is given according to law, so as to bind all parties in interest, the petitioner is not entitled to a judgment for partition against those co-tenants who appear and rely upon this objection.

As to the fact of notice having been given, the burden of proof was upon the petitioner to show that the order of notice had been published in the manner required by the order itself, and the proof failed. It was held in a recent case in Berkshire, that proof of compliance with the order in part, did not raise a presumption that it had been complied with in the whole.

Petition dismissed.