89 Mass. 192 | Mass. | 1863
The statute provides that no partition of real estate shall be made by the probate court when the shares or proportions of the respective parties are in dispute between them, or appear to the judge to be uncertain, depending upon the construction or effect of any devise or other conveyance, or upon other questions that he deems proper for the consideration of a jury and a court of common law. Gen. Sts. c. 136, § 60. But this provision, properly interpreted, requires that, to deprive the probate court of its jurisdiction in a matter of this kind in any particular case, it must be made to appear that there is a real doubt and uncertainty in relation to the legal rights of the parties. The mere fact that they do not agree what those rights are or that they are in controversy in respect to them with each
Giving full effect to the rule established by the statute, upon this interpretation of its provisions, there can be no doubt the probate court had, upon the facts agreed by the parties, authority and right to proceed with the petition for partition in the present case. The premises of which partition is prayed formerly belonged to Elisha Preston, who died seised and possessed thereof. By his last will, he devised the whole of his real estate to his three sons, John, Charles F. and George C., to be equally divided among them. . This will was duly proved and allowed; and thereupon the whole estate became vested in said devisees in fee, as tenants in common. The said George after-wards conveyed all his right, title and interest in and unto the estate to the said John and Charles, who thereupon became the owners thereof in equal moieties, as tenants in common. Subsequently to this, but prior to the time of the filing of the present
But the respondent alleges that the said Charles F. was indebted to the said Elisha Preston at the time of his decease, in a sum exceeding twenty-five thousand dollars; and he insists that the real estate devised to said Charles in some way stands chargeable for that portion of his said indebtedness which he is not entitled as a legatee of personal property to retain; and, therefore, that one third of the premises did not become vested in him upon the approval and allowance of the will of said Elisha; and, consequently, that he was not the owner of one half of the estate when he made a conveyance of all his right and interest in it to the petitioner. If this claim were correct, or indeed if the assertion that the share of the estate devised to said Charles is legally subject to any charge or liability in the nature of a lien or pledge or mortgage, as security for the whole or for any part of his said indebtedness, were not entirely and manifestly unsound and erroneous, it might well be affirmed and adjudged that the relative proportions and shares of the parties in the premises are in dispute and uncertain. But no such claim can be maintained, because the rule of law upon the subject is so well known and established that there can be no doubt of the legal right of a devisee of real estate to take and hold it absolutely, free from any lien or charge or incumbrance as security for anything which he owed to the testator, and may still owe to his legal representatives. It was very early determined that in the division among the heirs of the real estate of a person who died intestate, no deduction would be made from the share of any one of them for or on account of any debt due from him to the intestate; and that there was no
From these considerations it is apparent, from the statement of facts agreed to by the parties, that there is not the least doubt or uncertainty as to their relative rights and shares in the premises described. They are tenants in common, each owning in fee one undivided moiety thereof. The court of probate, therefore, was entitled to exercise jurisdiction of the petition; and the refusal to do so and the dismissal of the petition were consequently erroneous. The decree to that effect must be reversed, and the cause remitted to that court with directions to proceed and cause the partition prayed for to be made