Lindsey v. Brewer

| Vt. | May 15, 1888

The opinion of the court was delivered by

Taft, J.

The question presented in this case is whether

equity has jurisdiction of the matters alleged in the bill. We think that under our statute, Mrs. Brewer, upon the death of her husband, took a homestead in the premises in question, although it is alleged that she had deserted her husband and was living separate from him at the time of his decease. Proceedings are now pending in the Probate Court to set out'the homestead, and this bill is brought setting forth that a severance of said homestead would greatly depreciate the value of the residue of the premises, and would be of great inconvenience to the parties interested in the residue of the homestead, and render them of little value; praying that the proceedings in the Probate Court be set aside and held for naught, and for further relief. The Probate Court -has exclusive jurisdiction of the settlement of estates; and under R. L. s. 1914, has authority to order a homestead sold when it appears that a severance of it would greatly depreciate the value of the residue of the premises, and can so order upon the application of either the owner of the homestead or the owner of the residue.

Section 1908, R. L., provides that in case the dwelling-house, outbuildings and land not exceeding one-half acre in connection therewith, exceed in value one thousand dollars, and severance of the homestead would greatly depreciate the value of the residue, either party may apply to the Court of Chancery for relief; and the succeeding section, 1909, empowers the court to order a transfer of the interest of one party to the other, or a sale of the property. It was held in Palmer v. Palmer, 50 Vt. 310" court="Vt." date_filed="1877-10-15" href="https://app.midpage.ai/document/palmer-v-palmer-6580760?utm_source=webapp" opinion_id="6580760">50 Vt. 310, that the statute applied to cases where the land in connection with the homestead exceeded half an acre. The bill is defective under section 1908, in that it does not allege the value of the property named to exceed one thousand dollars ; so that that statute gives the orator no aid. unless the bill is amended in that respect. The orator insists that he is entitled to relief, that a court of equity has jurisdiction, without the aid of any statute.

In cases of homesteads, before they are set out, the parties owning the premises including the homestead, are not, strictly speaking, tenants in common’of the premises, although they are often termed such. The interest of the widow does not extend to any part of the real estate beyond that portion of the dwelling, out-buildings and land in connection therewith to the value of five hundred dollars, and the owner of the residue has no interest in the homestead itself. The estates are distinct from each other, but the boundaries are not known. The homestead is to be carved out of the entire estate by such boundaries as under the law may be determined by the commissioners. Were the parties tenants in common a partition might be had under R. L. chap. 70, relating to the partition of real estate; but we do not regard them as tenants in common, and that chapter is not applicable. A party owning the residue of the estate in a case like the one at bar, i. e., one not within the provisions of R. L. sec. 1908, must either submit to a sale of the premises under sec.’1914, or to a division of the estate under sec. 1907, and the character, condition and situation of the property may be such that a division of the estate cannot but be an unequal one and result in ruin to the owner of the residue, unless equity can seize hold of the matter .and compel an equal division. Although the parties are not tenants in common, the property is such that a partition must be made of it between the respective owners, and since the time of Queen Elizabeth the partition of estates has been held a proper subject of equity jurisprudence. The doctrine is well established in England and in this country by a long series of decisions, and it has been found of great public convenience, and as the learned Kent says, in his Commentaries, Vol. 4, page 365, “ if it should appear that equal partition cannot be made without prejudice to the rights and interests of some of the parties, the court may decree compensation to be made by one party to the other for equality of partition”; and that this is the rule independent of any statute provision. Jurisdiction in the partition of estates was taken by courts of equity, although at the time, the law courts had concurrent jurisdiction, and the equity courts took jurisdiction after partition had been effected at law, where the partition was unequal or had to be corrected. 1 Spence, Equit. Juris, of the Court of Ch. 654. The reasons for such jurisdiction are well set forth in Bispham’s Equity, sections 487-93 and note 3 to section 489. We are aware of no text book upon equity jurisprudence that does not admit that the matter of partition is one of the subjects of equity jurisdiction. This case is one of partition. The law courts cannot effect it with equality. ' Equity can. In what manner the Court of Chancery shall grant the orator relief is for that court to determine. In analogy to the statute, we think it may be in the manner provided by Kev. Laws, sections 1908-9, in respect to the estates mentioned in those sections, or by the payment of a sum by one to the other owner that will make the partition equal. We hold that the court has power to make the partition an equal one, and that, having the power, it is left to exercise it in its discretion. The demurrer should have been overruled.

Decree reversed and cause remanded.