#### Lewis Thayer *et al. versus*Josiah Thayer *et al.*

Where the real estate of an intestate is incapable of being equally divided among the heirs, the judge of probate may assign part or the whole to a portion of the heirs to hold as tenants in common, they consenting to take in that manner.

Where more than an equal share of the real estate of the intestate is assigned by the judge of probate to one of several heirs, it should appear by his decree, or by the return of the commissioners appointed to make partition, that such estate is incapable of being divided equally among all the heirs without great prejudice to the whole.

Whether upon an application to the judge of probate to make partition of real es tate, notice ought not to be given to all parties interested, before granting a warrant to commissioners, and before the commissioners proceed to appraise and divide, and before their report is accepted by the judge, *queere.*

*It*seems, that upon the return of such commissioners, the judge ought to make a decree of partition, and not merely to accept their report.

Where more than an equal share of real estate is assigned by the judge of probate to one heir, he being ordered to pay a sum of money to another heir, the land does not pass until the money is paid or secured ; and this requisition is not waived by the receipt of interest on the money awarded to be paid.

This was a petition of Lewis Thayer and Relief Thayer is wife, in her right, and Mary Thayer a minor, by guardian, *215to have their shares (one quarter each) in a parcel of land containing two acres and a half, set off to them in severalty. Lewis Withington, one of the respondents, pleaded that he was sole seised of the land. The petitioners replied that they were seised as tenants in common with Withington and others ; and upon this, issue was joined.

At the trial, before *Morton*J., it appeared, that Timothy Thayer died seised of the land, and that it descended to his four children, Libbeus, Josiah, Relief and Mary.

On the part of the respondent Withington it was proved, that commissioners were appointed by the judge of probate by his warrant in the usual form, dated April 6, 1824, to make an equal division of the real estate whereof Timothy Thayer died seised, among his children, provided the same was capable of division, and if not, to appraise the same and report to the judge how many of the heirs it would conveniently accommodate. ' The warrant directed the commissioners to notify all who were interested, to be present at the division. In pursuance of the warrant, the commissioners met Libbeus and Josiah upon the land, and made an appraisement and partition, as mentioned in their report, dated April 10, 1824. This report was returned to the probate office and accepted as follows — “ Norfolk ss. Probate Court at Dedham. June 1,1824. This return being this day examined by me, I do approve thereof, and order the same to be recorded. Edward H. Robbins, J. Probate.”

The commissioners appraised the whole real estate at 3414 dollars, one fourth being 853 dollars and 50 cents, and they set off to Libbeus a part of it (including the two acres and a half) appraised at 1482 dollars, and to Josiah a part appraised at 1482 dollars, they paying to their sisters certain specified sums, and the residue, appraised at 450 dollars, they set off to Mary.

Josiah was appointed guardian of Mary on April 6, 1824, and settled an account of his guardianship in the probate office June 5, 1827, in which he charges himself with thy rent for three years, of the land assigned to Mary, amounting to 81 dollars.

On the 10th of April, 1825, Lewis Thayer and Relief, his *216wife, received, of Libbeus and Josiah one year’s interest on t^ie am0U1Qt to be paid her in pursuance of the settlement in the probate office, and gave their joint receipt therefor.

*Oct. 28th.*

Withington’s title to the two acres and a half was derived from the levy of an execution upon the same in May, 1827, as the property of Libbeus.

A verdict was taken for the respondent, subject to the opinion of the whole Court,

*A.*Prescott, for the petitioners,

contended that the partition was invalid for several reasons.

The judge of probate has 'no authority to assign the real estate to a part of the heirs, except where an equal division among them all cannot be made without great prejudice to the. whole real estate ; and in such case the fact should be certified by the commissioners ; which was not done in this instance. *St.*1817, *c.*190, § 24 ; *Hunt*v. Hapgood, 4 Mass. R. 121.

The report of the commissioners does not show that notice was given by them to the parties interested, to be present at the making of the division, and in fact such notice was not given. *St.*1817, c. 190, § 26,

Although the parcel of land in controversy was set off td Libbeus in severalty, yet a great part of the real estate was assigned to him and Josiah as tenants in common. This not being authorized by the statute, makes void the' whole partition. *Arms*v. *Lyman,*5 Pick. 210 : *Hunt*v. *Hapgood,*4 Mass. R. 121.

The return of the commissioners was accepted by the judge without notice to the parties interested. It is his duty, upon such a return being made, to ascertain whether the land is susceptible of an equal division, and the heirs have a right to be heard upon this question. *St.*1817, c. 190, § 26. Notice should also have been given before the appointment of the commissioners.

The judge should have made a decree assigning the land to Libbeus to hold in fee.

And before making such a decree, he should have ascertained that the sums awarded tr the daughters had been either *217paid or secured. *St.*1817, c. 190, § 24. The records furnish no evidence that this was done.

The receipt of Lewis Thayer and his wife will be relied on as a confirmation of the partition ; but the partition being void, the receipt is not binding, there being nothing upon which it can operate. It could not pass a title to real estate. *Newhall*v. *Sadler,*16 Mass. R. 128.

One of the petitioners is still a minor ; and she is not bound by her guardian’s acts, to take part of her father’s estate in money and part in land.

Not having notice, the petitioners could not appeal, and error does not lie to the Probate Court; the proceedings therefore are merely void. *Smith*v. *Rice,*11 Mass. R. 514 ; *Rice*v. *Smith,*14 Mass. R. 431 ; *Sumner*v. Parker, 7 Mass. R. 83 ; *Savage*v. *Gulliver,*4 Mass. R. 178.

*Leland*and *S. J. Gardner, contra.*

The decisions in regard to notice have been upon *St.*1783, c, 36, §11, which differs from the provision in the statute of 1817. By this last statute it is left to the discretion of the judge of probate to order notice or to dispense with it. Many estates which have been settled will be disturbed, if this partition is held to be void for the want of notice.

In general, a judgment can be avoided only on appeal or on a writ of error ; *Hall*v. *Biggs,*2 Salk. 674; *Prigg*v *Adams,*ibid.; *M'Neil*v. *Bright, 4*Mass. R. 303 ; *Commonwealth*v. *Pejepscut Proprietors,*7 Mass. R. 430 ; and though the judgment of an inferior tribunal is void, if it exceeds its jurisdiction, we apprehend it is so only when the defect appears on the face of the proceedings. *Procter*v. *Newhall,*17 Mass. R. 91 ; *Crepps*v. *Durden,*Cowp. 646 *Gray*v. *Cookson,*16 East, 25 ; the mere omission to state the course of proceeding is not enough. *Gray*v. *Gardner,*3 Mass. R. 399 ; *Symonds*v. *Kimball,*ibid. 299. The judge of probate acted in the capacity of judge and jury, and it is to be presumed that every thing was rightly done. The commissioners were directed by the warrant to give notice, and as they return that “ pursuant to the warrant they appraised,” &c. it is to be inferred that they gave notice. If *218therefore the petitioners were dissatisfied, their only remedy was^to appeal.

Oct 30th,

To show that an assignment to two heirs as tenants in common is valid, they cited *Gordon*v. Pearson, 1 Mass. R 323.

In regard to giving security for the sums awarded for owelty of partition, the statute of 1817 differs from that of 1783; the latter requires “ good security,” the former “ such sufficient security as the judge of probate shall direct.” Under this provision it will be presumed, that the judge took such security as in his discretion he thought sufficient.

It belongs to the commissioners to set off the land ; but if not, the acceptance of their report by the judge is an assignment.

One, at least, if not both of the daughters, has ratified the partition; which may be valid as to her and not so as to the other. *Rice*v. Smith, 14 Mass. R. 433.

*Per CuHam.*

The objection made to the partition, that undivided moieties of a part of the land are assigned to the two sons, cannot prevail; for the statute allows the judge of probate to assign the real estate to one or more of the heirs, and upon this assignment to the sons, they became tenants in common.1

It is urged, that it does not appear by the report of the commissioners, or a decree of the judge, that the estate was incapable of an equal division without great prejudice to the whole. This should appear in one or the other, but the order of the judge being conditional, that if the commissioners should find the estate could not be so divided, they should report how many of the heirs it would accommodate, it might be presumed that they found it not susceptible of an equal division. If this were the only objection, we should not perhaps hold the partition to be invalid.

Another objection is, that no notice was given to the petitioners previous to issuing the warrant to the commissioners, nor previous to making the appraisement and partition, nor previous to the acceptance of their return.2 These are *219questions of considerable interest, and we regret to see so much looseness in the probate office here and elsewhere, in cases in which real estate is taken from one heir and assigned to another, without any thing appearing on the record to show mat due notice has been given to parties interested. In regard to Lewis Thayer and his wife, their acceptance of interest may be considered to be a waiver of their right to notice, as well from the commissioners as the judge of probate, the husband being of full age and acting for his wife. But with respect to the other daughter the case is different, she being still a minor. Some real estate, together with a sum of money, was assigned to her, and her guardian took possession of the real estate and charged himself with the rent ; but this was for his advantage, and is not evidence of the assent of the minor. The judge too merely certifies that he approves of the report of the commissioners and orders it to be recorded. We are inclined to think that in a matter of so much importance, there ought to be a decree assigning the shares respectively, and that notice should be given, as contended for on the part of the petitioners. We do not however decide these points, as many other estates which have been already settled might be affected by the decision.

But there is another objection to the partition, which is fatal. The statute requires that the money awarded to the daughters should have been paid or secured to be paid.1 The judge merely accepts the return of the commissioners, which assigns real estate to the sons, they paying certain sums of money. It does not appear that the money has been paid or secured, and until one or the other is done, the land does not pass. Receiving interest is not sufficient.

*Verdict set aside and respondents defaulted.*

1

 See Revised Stat. *c.*103, § 56, 57.

2

 See Revised Stat. c. 103, § 53.

1

 See Revised Stat. *c.*103, § 57-,