#### Cowan’s Appeal. [Cowan *v.*Cowan.]

An amendment to a bill in equity for partition, filed by the heirs of a decedent, may be allowed after demurrer filed, by adding the name of the widow of the decedent as a party defendant, a prayer for general relief, etc.

A motion to set aside the report of a master in partition, and suppress the return, will not be entertained where counsel for the defendant appeared before the master without protest or objection to his authority, and filed exceptions to his report.

A bill in equity by heirs for partition of the' lands of a decedent, will not be dismissed upon demurrer because a tenant for life, by deed from the decedent, is joined as a party. Nor will the report of a master and a commissioner, urider the Act of 1885, be set aside because made jointly.

*Query,*whether an appeal to the supreme court will lie from the action of the court dismissing exceptions to the report of a master and a commissioner, reporting that the lands cannot be divided, etc., under the Act of 1885.

Oct. 4, 1888.

Appeal, No. 98, Oct. T., 1888, from decree of C. P. Westmoreland Co., dismissing exceptions to a master’s and a commissioner’s report on a bill in equity for partition by James Cowan and Lizzie C. Hazlett, against Frank Cowan and Catharine Stoy, at No. 156, Equity Docket. Clark and Hand, JJ., absent.

The bilJL averred that Edgar Cowan died intestate on Aug. 29, 1885, leaving to survive him a widow, Lucetta Cowan, and three children, viz: Lizzie C. Hazlett, intermarried with J. J. Hazlett, James Cowan and Frank Cowan; that Kate Stoy has a life-estate, by deed from decedent, in two lots of land of decedent; that the decedent died seized and possessed of certain lands fully described in the bill; with prayer for the appointment of a master and a commissioner to make partition and settle an account of the rents, issues and profits.

Frank Cowan and Catharine Stoy demurred to the bill, alleging want of privity among the parties, non-joinder of the widow, want of a prayer of process, and other matters.

After the demurrer was filed, the plaintiffs moved to amend the bill by adding the name of the widow, Lucetta Cowan, as a defendant, and by adding a prayer for a decree quod partitio fiat, etc., and for general relief. The court granted the motion in the following opinion, by Hunter, P. J.:

“ I think the amendment set forth in the within notice is clearly allowable under the equity rules. The application is to amend the bill by adding the name of the widow and also to amend the prayer in the bill. This does not mean that, if we allow the amendment, we make necessarily a decree of quod partitio fiat. After the amendment, the defendants may amend their demurrer or withdraw the same, and answer, upon application to the court. But this is a master for them. The right to a decree will be passed upon at hearing. And now, March 14, 1887, the bill and prayer thereof amended as asked for and set forth in the notice.” [1]

After the amendment was allowed, Lucetta Cowan and Frank Cowan demurred to the amended bill averring want of privity among the parties, and other matters.

*610The court overruled the demurrer, in the following opinion, by Hunter, P. J.:

“ The bill sets forth the death of the ancestor, intestate, who his widow and heirs are, and a description of the lands whereof he died seized, together with lands wherein Miss Kate Stoy has a life-estate. In the various demurrers filed, there is no denial of the facts, because a denial is inconsistent with a demurrer which admits the facts; and, as the amended bill now stands, there is no allegation that any of the lands have been omitted, or that there is any party claiming title to the land not brought in.

“As to the demurrer of Mrs. Cowan, the widow, we need only remark that any tenants who may be on the lands are not so interested as to require that they be made parties. If they are lawfully in possession under a lease, equity will protect them in their rights.

“ And as to the demurrer of Miss Stoy, I am unable to see how her rights can be jeopardized by these proceedings. It is said in Bispham’s Equity, § 489, that parties to a limited estate may become parties to a bill, and, if deemed advisable, the remaindermen or reversioners may be brought in so that the whole may be divided. As to this law, I know that the plaintiffs, not having the right of possession at present, might be postponed, possibly, unless the Act of April 11, 1835, might be construed to apply. But, be this as it may, Miss Stoy cannot now stay these proceedings simply because she has a life-estate in part of the lands. Her protest, we think, can come if she be interfered with before final decree. We have control of the case throughout.

“ Upon careful examination and proper consideration of the common law as well as our own statutory provisions, I am of the opinion that the plaintiffs are entitled to their decree and to have the matter reférred to a master and commissioner as provided for by Act of 1885, which supplies the Act of 1876. We therefore make the following decree:

“ And now, May 30, 1887, it is ordered that a decree quod partido fiat be entered, and that a commission issue to John B. Head, Esq., as master, and Hon. Welty McCullough, as commissioner, to whom is referred, as master and commissioner, the matters set forth in the bill and amended prayer thereto; and, so far as the several demurrers interfere with this decree, they are overruled.” [2]

On Dec. 3, 1887, the master and commissioner filed their report in which they reported against dividing the whole estate into three parts, but divided the lands into purparts and valued the same, according to the provisions of the Act of July 7, 1885, P. L. 287. Exceptions were filed to the report by the defendants, upon the merits, and also averring that the master and commissioner erred in not conducting the proceedings in accordance with the rules and precedents of courts of equity. Subsequently, the defendants moved the court to set aside the report and suppress the return. The reasons assigned included the reasons averred in the last exception *611above, and also that the master and commissioner acted and reported jointly, confusing their duties, etc. The court refused the motion, filing the following opinion:

“ After a full hearing of sundry applications, and lastly of the defendants’ demurrer, judgment quod partitio fiat was rendered on May 30, 1887, and thereupon in open court the appointment of commissioner and master was made as authorized by the Act of May 8, 1876.

“ The report shows that the commission proceeded as directed or contemplated by the statute; and, having concluded their duties and labors, gave notice that their report would be filed on Dec. 3. It was accordingly filed on that day, and on that day was confirmed nisi, exceptions renewed, and the cause ordered on the argument list.

“On Dec. 17, Frank Cowan, for himself and Lucetta Cowan, gave notice that, on Dec. 21, he would move to set aside the report; and, on that day, at his instance, the motion was filed, and the matter set for argument with the exceptions.

“ No reasons were filed with the motion as set forth in the notice ; but, on the argument, seventeen printed reasons were assigned, accompanied by a learned and lengthy argument, all of which we have examined with great care.

“ However much we appreciate the earnestness of the learned solicitor in the position he now assumes, we are of the opinion that the motion comes too late. He appeared before the commissioner and master, during their sittings, in his own behalf and that of his client, without protest or objection to their authority or the regularity of the proceedings. Had this been done and the question specifically raised, we think it would have been the duty of the commissioner to suspend at once and submit the matter to the court. Nor was the court appealed to, at any stage of the proceedings, touching the subject-matter of the motion now made, to correct any alleged error of their own on the regularity of the proceedings before the commissioner. And, further, when the exceptions were filed to the report, the question was not even then raised.

“ As to the gentlemen composing the commission, we need only say that they were of the court’s own selection, and this because of their large experience as members of the bar both in the law and equity side of the court, their freedom from any possible bias in this case, and for their well-known intelligence and integrity.

“And now, March 19, 1888, the motion to set aside the report of the master and commissioner and to suppress the return, having come on to be heard, the same is now, upon due consideration, overruled and denied.” [3]

Subsequently the court overruled the exceptions, saying:

“ We have carefully examined the exceptions filed and have gone over the report many times with much care, and we see no error.

“And now, March 19, 1888, the matter of the exceptions to the commissioner’s and master’s report having come on to be heard, *612upon due consideration, the same are now dismissed; and the court having examined the report, the same is approved; and it is now ordered and decreed that the report be confirmed.” [4]

Oct. 29, 1888.

*The assignments of error*specified, 1, the opinion and order of the court allowing the amendments, quoting them in full, as above; 2, the opinion and decree of the court in overruling the demurrer to the bill, quoting them in full, as above; 3, the opinion and order of the court overruling the motion to set aside the report, quoting them in full, as above; 4, the decree of the court dismissing the exceptions to the master’s report, quoting it as above.

*Frank Cozuan,*P. P., and for Lucetta Cowan.

Catharine Stoy was wrongly joined. She had no estate or interest in common with the heirs of Edgar Cowan. The court, besides, had no jurisdiction to award partition of the land in which she has a life-estate until her death: Smith’s Est., 2 C. P. Rep. 181; S. C. 2 Del. Co. Rep. 423; Lee’s Est., 13 Phila. 291; Negley’s Est, 23 Pitts. L. J. 41; Nichols *v.*Nichols, 67 Am. Dec. 703.

The court was in error in not permitting the parties to appoint the commissioners to make partition; Hunter, on Proceedings in Suits of Equity, 101; Adams, Equity, 231; Bennett’s Practice in the Master’s Office, 143; Daniell’s Ch. Pr. 771.

*H. P. Laird,*with him *Keenan*and *W. PL. Young,*for appellees.

The amendments were a matter of and allowed.

The second and third assignments of error are not in accordance with rules 22 of the supreme court.

Catharine Stoy was properly a party, as she was in possession of the land. As the widow joined in the deed for the life-estate in Miss Stoy, she will not be entitled to any interest in this land during this life-estate. The court, in ordering a sale, must mould the decree so as to protect the interests.

The appeal should be quashed, as there was no final decree: Gesell’s Ap., 84 Pa. 238; Snodgrass’s Ap., 96 Pa. 420.

Per Curiam,

Decree affirmed and appeal dismissed at costs of appellants.