Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1861-09-13

VILE the equitable estate to Be in the heirs At Law
VI Aan o. lass, even if the word family a
usea IN me code, ordinarily embrsce5 The vvidouI
II cannot be allowed to do a. 49, b-- -. - -;
oi Ihe pond TIE title 10 this land vas h Hszaiia-
D. lass at ms death and descended IN HE bsirs ~
me wiz OF JOhn GaSs could not alter or imoafr
thelT ute Us ohiy effect Wss 70 pass 10 them the
legal estate, and We will not supposa tbst sotbi,
else was intended. = -
Though John Gass in his Uterine mich, -, -,
ercised the power in favor Of the children NJ Heza-
kiah B , By the execution Of deed to tbsTo tb-b
defeating the estate Of Hezeklah ne eo7,i5 s.sst
er, by deed or BY viii bring in the widow. The
execution Of the deed must have been, either 10
Hezekiah B, or TO his children, and could be % no
one else.
TINS result is not changed by the recital in thu
viii, that John Gass paid Hezskiah B. Gass admin
istrator, for The saving done for him By the sNid
I Hszekah B.
He was not bound 90 DO SO, even Il HezskiAh B
meant be should But there Is no evidence he 80
intended And besides, how could anything that
mlght take place betW cen John Gsss and the admin
srator of Hezekiah B. affect the right Of the heira
/ Of the title in this land! L certainly could not.
And It \ plain, from the bill Itself that John Casa
/ did not intend any such thing.
| Third. The widow of Hezskiah B Grass took no
dover in the land (uness it be ire portions except
ed In favor of her husband because the life estate
OF John Gsss was suhsistng when her husband died
| snd be had only remainder, He'd 648. But ~
alx OF tue heirs who united with her as complain
ants 10 the bill eOusidsr her right 70 DOVER and ask
that Il may be allotted 20 her. she may have de-
eree for I'D tins a. ~ the ether Tth defendants
deny her right
Fourth We think the decree of partition had in
the County Court In Greene county, under which
the defendant, Mary Ann Hawkins, obtained her
share or 18th luiys upon the parties; and that
Court OF Chancery cannot revise its proceedings
or correct errors il any there be- in the Decree and
certainly cannot. as Is attempted here By new snd
distinct SHIT pass BY the proceedings Of that cours
altogether. and ask Cor partition The court
under which the proceeding had and by which Il
was authorized concurrent jurisdiction Il psrti-
ton ceases upon the County Circuit and ChAneery
Courts and the action of the court first taking ju-
rlsdletion must, other tribunals Of the same,
or concurrent power. be final Code sec 1855.
When court Of law and a court of equity have
concurrent jurisdiction Of the matter 10 dispute,
the court which takes Jurisdiction settles the mat
ter cOnclusiVely. Thompson vs.. Hill. Yerg LET.
FlOurnoy's Exrs. vs.. HOlcomb NurE "a.
The compliments including eOmpl anant Sarah
were parties by actual service Of progress and va
10 rregularityssfeetBgth authority of the COua
~ Court No fraud 10 the decree IL allowed or pre-
tended aud indeed no inequ ty the densiOn being
m precise conformity 70 the rights Of The parties,
save that il is i0sisted that complainant Sarah did
not get her share.
But we have seen that under the viii she took
nothing, snd by law has right 70 dover unless It
be IN that portion of the land in which John GsEa
did not reserve life estate and 20 that the de-
cree Of the County Court ends the matter, the re-
medy II any, being By appeal or one OF srrer 20 q
rising court and not by original suit il tribunal
of concurrent authority. The cases Of Nicely, ".
Buges a Hump I'D and WhellOck - Hales, heirs
90 Do 64l 70 which we have been referred cannot
help Compartments The doctrine of these cases is
that bill partition l. not ball settle title.
but bill to divide that which belongs 20 tenants in
common, among them In the security, and II the
title be disputed, partitions viii not be made until
the dispute IL settled In agreement other appro
pirate form OF seton at law and hence that in an
aatiOn of election. partition by decree was not
conclusive upOn the rights Of the parties as % TIA
title But this doctrine can have no application
where the question rises upOn equitable title, such
az an unassigned donor mig which must be decid-
Cd and cannot be sent TO law Cox Vs. Smith, Johns
en-. r. 27l.
In proceeding to divide the real estate Of an intes.
tate among the heirs, in whatever court Il may DO
had every person entitled 20 DOVER if the same has
not bsen allowed Is required By the Code (sec. 527l
to be made party and the dOwrr set apart BY the
Is IA other cases. Sec. 32sSi and
when complainant Sarah wss brought into the
County Court defepdandahE upon the petition or
bill Of defendants for partition that court could
recognize and protect her right 70 dover upon the
partition and il was her duty there % have asserted
it a Johns. CHI Rep 276J and If the same were not
allo we'd or allotted To her in the division By which
Hawkins and wife got more than their share her
remedy cannot By new and distinct bill. The Code
sc 1891 declares that partition made therein d.
the proceedings who have 10 the time aly interest,
in the premises derived a. in fee, ss tea
ants for years. or entitled TO the reversiOn
mainder or Inheritance of such premises, after the
termination Of any particular estate therein, oF
who by any contingency 10 any will or conveyance
or otherwise msy be or may become entitled 70 any
beneficial urerestin the premises, who shall have
any interest In any individual share Of the premises
tenants for years for life, BY the courtesy or IN
dover. And ali peFs0ns Interested Ia the premises
Win ara mix uVn nj tn y
given By publication - therein directed, and upon
the priVies Of the parties above enumerated.
But by sec. 1892. IL is provided that such judg-
ment, and partition viii not eject any tenants, or
persons having claims as tenants in dover, BY tho
courtesy or for life, % the whole OF the premises,
nor preclude any person, except those specified in
the last section, from claiming any title 70 the pre-
misses or from contrOverng the title or interest Of
the parties between whom the partition has been
made How far it was intended oy these two sec
tons and the other provisions OF the Code upon the
subject 70 change the rule 10 Nelly Boyles and
WhellOck vs.. Hale's heirs as 70 che Oneonclusive
nature OF the decree, OF partition upon the title Of
the parties thereto may not Be very easy 70 STATE
and we do not attempt It here.
II is enough that We think the complainant sarah,
standing as she did in the case is concluded By the
decree Of County Court
We may remark however that il seems 70 have
been well settled In the Court Of Chancery, the un2
certainty Of the shares IS not ground for define
lively refusing partitions; Out thAt tne interests VI
the parties might be sscertained BY the court
through the medium Of the Master, and If Il sp-
peared that the cOmylanauts and defendant respee-
lively. or some OF them were entitled 20 the Whoa
subject, thea % order partition, accordingly 10
the rights of all or such Of them IS appeared en-.
titled, dismissng from the case such IS appeared
10 have no right and after the court nad thus a.
certained the proportions and rights OF the parties,
it was the duty OF the commissioners 70 make the
division In those ascertainsd proportions. Agor
Va Fairfax Il YES 53l. IL was not
every case where the title was idgated, even
upon a legal title that was to be sent 70 law,
but only cases of doubt and difficulty, As % the sx
tent of the undivided interest Of the respective
claimants, 3 Johns ch. S02, S05, Do. III, lls.
And the authorities generally lay down the sule,
that the Judgment decree, in partition establishes
the title and in eje0tment must be conclusive, Mills
vs.. Whetherington, Dew. 4 Bait Law, P. 4SS, Chap
Va. Birmogham Gov. $50, 51S.
The allotment TO defendants viii stand, and psrti-
ton will Do made among compliments OF the
residue, first allowing the widow 9Th OF the
dover.
The decree of the Chancellor will be reversed
and decree entered in conformity 70 this opinion
WRIGHT.
A true COPY: ". R. CasWell. Clerk.