| Mass. | Mar 15, 1805
The Court were unanimously of opinion that the decree of the judge of probate ought to be reversed, and ordered the entry thereof to be made as follows, viz., “ Because the said Edward Proctor and Hannah, his wife, Martin Gay and Ruth, his wife, and Catharine Lombard, appellants as aforesaid, claim the rhjht and interest, or a part thereof, which the said Gibbs Atkyns had in the estate of the said Thomas Atkyns deceased, by force of a supposed deed here exhibited, and said to have been made by the said Gibbs [ * 323 ] Atkyns * to the said Martin Gay and Ruth, his wife, and others, therein mentioned, which claim of the appellants is determinable exclusively at the common law ; the Court here reverse the said decree, appealed from as aforesaid, and suspend all proceedings which might be had in the Court of Probate as aforesaid, for the settlement or division of the remaining estate of the said Thomas Atkyns, deceased, until the said, claim shall be removed, or otherwise determined.
Decree reversed.
Note.—The cause was not argued, nor any objection made, before the judge of probate, to the assignment of the whole estate to the appellee ; nor was it then suggested that the appellants claimed by virtue of a deed from the appellee.