44 A. 308 | R.I. | 1899
Several objections to this bill for partition are raised on demurrer. One objection is that the bill is multifarious.
Its primary object is a division of real estate held by most of the parties as devisees under the will of Eli Aylesworth, and in aid of this object it seeks to free the land from the liability of a charge under a bond of the testator to pay Susan H. Seamans seventy-five dollars a month during her natural life by making her and the executors of the will parties to this bill, and asking the court to award a gross sum or to assign real estate to her in discharge of said bond, or to determine what part of the real estate shall be subject to charge for such payments to the exclusion of the rest. It then prays for a distribution of the personal estate in the hands of the executors.
The statement of the prayers of the bill shows clearly that *438
it is multifarious, as defined in Arnold v. Arnold,
The will devised the real estate in tail; and another objection to the bill is that children, husbands, and wives of first tenants in tail are made parties. We do not need to consider the general rule on this subject, because, in our opinion, Gen. Laws R.I. cap. 265, § 20, covers this case.
"Partition, either at law or in equity, may be made of any lands . . . between the person or persons who hold the fee of any share or shares thereof, and the person or persons who hold or are or may be entitled to any share or shares thereof, for life or in reversion or remainder, and whether such remainder be vested or contingent, and whether it be to persons in being and ascertained or to persons not in being and to be ascertained thereafter, or subject to be opened to let in those afterwards to come into being or having other interests whatsoever vested or contingent therein: Provided, that all persons in being at the time of the commencement of the suit for partition, interested in the estate, *439 be made parties to the proceedings, and their title or interest fully shown upon the record by the pleadings; and providedalso, that before final judgment or decree for partition or sale in any such case the court shall appoint some discreet person to represent the interest of persons, if any, not then in being."
This statute was passed in February, 1861, Pub. Laws, cap. 360, and its evident purpose is to allow full partition with clear title, while, at the same time, all interests are to be represented, or shown to the court that they may be duly protected. It is very broad in its terms, covering interests both vested and contingent, those ascertained and to be ascertained, and persons living and those who may be born. In Lyman, Pet'r,
As to the wives, it was held in Hoxsie v. Ellis,
In Lyman, Pet'r, Judge Potter implied a distinction between cases of sale and partition by metes and bounds. He said: "We can easily understand why in partition and many other cases a court might hold a share to be well represented *440 by the first tenant in tail or person holding the first estate, while the same reasons would not apply where the object was a sale of the property, or a total change of its nature."
We think, however, that the terms of section 20 are applicable to this case, and hence that the wives and husbands are proper parties to the suit.
Another objection is that the bill shows that another bill, brought by other parties for the same partition, is now pending. The bill alleges that the conduct of the prior suit shows a purpose to delay partition instead of accomplishing it. If this be so, the proper mode of procedure is to move to dismiss the bill for want of prosecution. The general rule in equity is that the pendency of another bill between the same parties for the same result is good ground of demurrer. 1 Dan. Ch. Pr. *632. But where the second bill embraces the whole subject in dispute more completely than the first, it will be allowed to stand and the first bill will be dismissed. 1 Dan. Ch. Pr. *633. As this bill embraces additional and, as we hold, proper parties, it is not demurrable as a second bill, although the same result might have been reached in a shorter and better way by a demurrer to the first bill for want of parties.
It follows that the demurrer is sustained on the grounds of multifariousness and of bringing in as parties devisees in tail where the entail has been barred.