12 Gratt. 260 | Va. | 1855
delivered the opinion of the court:
The court is of opinion, that as in a proceeding at law by writ of partition, it is the regular course to assign to each parcener his part in severalty; Litt. § 276, Coke 179 b; from analogy thereto, the same
The interlocutory decree of the 28th of November 1842 directed the commissioners, amongst other things, to divide equally amongst the plaintiff and the defendants who were infants, the tract of land of which Malinda Custis died seized. Instead of pursuing the directions of said decree, the commissioners, by their report filed the 30th October 1843, assigned to the appellee Lewis J. Snead one-fifth of said tract of land; leaving the residue thereof undivided.
The court is of opinion, that in this the commissioners violated their duty, and, in the absence of all evidence to justify it, it was error to confirm the report aforesaid in this respect.
The court is further of opinion, that the same objection exists to the report of the commissioners under the decree of the 26th October 1846. The said decree requiring a division of both the tract descended from Malinda Custis and the tract whereof William Custis of Henry died seized, separately amongst the parties according to their rights, the decree should have been followed and carried out according to its terms, unless the interest of all concerned required a departure from
The court is further of opinion, that as it is alleged in the original bill that said William Custis of Henry left a widow who at the time of filing said bill was the wife of James Stewart, and the bill prayed for a partition of the land of which said William died seized, subject to the widow’s estate in dower, the widow and her husband should have been made parties; and her dower assigned; and partition should have been made of the residue. And it was error to have directed or confirmed a partition of said tract until such dower had been assigned; it not appearing, and there being no
Decree reversed.