
    *Custis v. Snead & als.
    January Term, 1855,
    Richmond.
    1. Partition — Shares Assigned in Severalty — Departure from Rule — Record.—Upon a bill for partition of laud, as a general rule, the share of each parcener should be assigned to him in severalty. And if from the condition of the subí ect or the parties, it is proper to pursue a different course, the facts justifying a departure from the rule should, at least where infants are concerned, be disclosed by the report or otherwise appear, to enable the court to judge whether or not their interest will be injuriously affected.
    2. Same — Same—Same—Facts Justifying Must Appear to Court, — Where the same parties are entitled to lands derived from the father and also to lands derived from the mother, and some or all of them are infants, if these lands are hlendea in the division, it must appear to the court that the interest of the parties in general will be promoted by this mode of partition, to enable the court to protect the rights of the infants.
    
      3. Same — Widow Must Be Party — Dower—Assignment. —where the widow of the person who died seized of the lands of which partition is sought, is alive, and entitled to dower, she should be a party to the suit, and her dower should be assigned to her, and partition made of the residue. And it is error to proceed in her absence, and mate partition of the lands subj ect to her right of dower.
    This was a bill filed in November 1842 in the County court of Accomack, by Lewis J. Snead and Thomas Custis, for partition of a tract of land descended to the children and heirs of Malinda Custis, of whom Thomas Custis was one, and had sold his share to Snead. It also prayed partition of a tract of land and slaves descended to the children and heirs of William Custis •of Henry. William Custis was the husband of Malinda, and their children were the heirs of both. After their death one of these children died an infant, intestate and unmarried, and his interest in both estates descended to the other children ; all of whom were infants when the bill was filed except Thomas Custis. The bill stated that the second wife *of William Custis survived him, and was then married to James Stewart; but they were not made parties to the suit; and the prayer was for a partition of the two tracts of land and the slaves.
    At the same term of the court a decree was made appointing' commissioners to divide : First, the land descended from Malinda Custis, equally amongst the plaintiff Snead and the infant defendants: Second, the slaves equally amongst the plaintiff Thomas Custis and the defendants : Third, the land descended from William Custis of Henry, equally amongst Thomas Custis and the infant defendants. And they were directed to report their proceedings to the court.
    In October 1843 the commissioners reported that they had divided the slaves according to the decree. That they had laid off and allotted to the plaintiff Snead one-fifth of the land descended from Malinda Custis: And that they had delayed to divide the land descended from William Custis, at the request of one of the parties, who desired to have a rehearing of the decree.
    In October 1846, the plaintiffs filed an amended and supplemental bill, in which, after stating the previous proceedings, they say that Sñead had purchased Thomas Custis’ interest in the land descended from William Custis of Henry, and also the interest of the defendant Elizabeth Custis in the laud descended from Malinda Custis. And they ask that both tracts of land may be divided, giving to Snead another fifth of the first named tract, as assignee of Elizabeth Custis, and one-fifth of the second tract as assignee of Thomas Custis; and that the other parties may each have his fifth allotted to him.
    The cause came on again to be heard in October 1846, when the court confirmed the report of October 1843, and appointed the same commissioners, with directions to divide the land descended from Malinda *Custis, except the fifth, which had been allotted to Snead, and also the land descended from William Custis of Henry, amongst the plaintiff Snead and the infant defendants.
    In November 1846, the commissioners reported that they had assigned to Snead the whole undivided balance of the land descended from Malinda Custis, in full of his interest in both tracts; and that they had assigned to Elizabeth Custis and the three infant defendants the tract descended from William Custis of Henry, which they had divided equally among the four.
    Benjamin E. Custis, one of the defendants, having attained the age of twenty-one years, he in October 1851 filed his affidavit in the cause, in which he expressed his belief that the division made by the commissioners was unequal in favor of Snead. And in December he excepted to the report of 1846, on the ground that they did not obey the directions of the decree of October 1846, but had assigned the whole of the land descended from Malinda Custis to the plaintiff Snead: And that this land was far more valuable than Snead’s interest in the other tract.
    The cause came on to be finally heard in December 1851, when the court overruled the exceptions, and confirmed the report: And thereupon Benjamin E. Custis applied to this court for an appeal, which was allowed.
    R. T. Daniel, for the appellant.
    Patton, for the appellee.
    
      
      Partition — Shares Assigned in Severalty. — See footnote to Howery v. Helms, 20 Gratt. 1, where the cases are collected which cite the principal case. See also, Beckham v. Duncan, 1 Va. Dec. 679.
    
   ALLEN, P.,

delivered the opinion of the court:

The court is of opinion, that as in a proceeding at law by writ of partition, it is the regular course to assign to each parcener his part in severalty; Lift. \ 276, Coke 179 b ; from analogy thereto, the same ^course should, as a general rule, be observed where the proceeding is by bill in chancery. That such partition of the whole subject is more likely to be equal and just than where a partial partition is made, as the commissioners will have an accurate view of the whole subject, and by dividing it into different parts, will be furnished with the means of making a fair comparison, and can correct inequalities. If from the condition of the subject or the parties, the interest of the parties in general would, in any case, be promoted by pursuing a different course, the facts justifying a departure from the rule should, at least where the rights of infants are involved, be disclosed by the report, or otherwise appear, to enable the court to judge whether their interest would be affected injuriousy or not.

The interlocutory decree of the 28th of November 1842 directed the commissioners, amongst other things, to divide equally amongst the plaintiff and the defendants who were infants, the tract of land of which Malinda Custis died seized. Instead of pursuing the directions of said decree, the commissioners, by their report filed the 30th October 1843, assigned to the appellee Hewis J. Snead one-fifth of said tract of land; leaving the residue thereof undivided.

The court is of opinion, that in this the commissioners violated their duty, and, in the absence of all evidence to justify it, it was error to confirm the report aforesaid in this respect.

The court is further of opinion, that the same objection exists to the report of the commissioners under the decree of the 26th October 1846. The said decree requiring a division of both the tract descended from Malinda Custis and the tract whereof William Custis of Henry died seized, separately amongst the parties according to their rights, the decree should have been followed and carried out according to its terms, unless the interest of all concerned required a departure from *the terms thereof; and if so, the facts should have been reported or made to appear, to enable the court, having a regard to the interests of the infants, to judge whether such departure should have been permitted. That although under the 4th section of the act concerning partitions, 1 Rev. Code of 1819, p. 360, partition may be made of several parcels of land or other real estate to which the parties have title, though such title may be derived from different sources, by allotment of part in each parcel or of parts in one or more parcels, or of one or more individual parts, with or without the addition of a part or parts of other parcels, as shall be most for the interest of the parties in general ; yet where the same parties are entitled to lands derived from the father and also to lands derived from the mother, and some or all are infants, as in the event of the infant dying under age, a different course of descent is prescribed, inconvenience might result from blending such lands in the partition ; and it should at least appear in the words of the act, that the interest of the parties in general would be promoted, to enable the court to protect the rights of the infants. Nothing of that kind appearing either in the report of the commissioners or otherwise, the court is of opinion it was error to overrule the exception and confirm said report filed on the 30th November 1846.

The court is further of opinion, that as it is alleged in the original bill that said William Custis of Henry left a widow who at the time of filing said bill was the wife of James Stewart, and the bill prayed for a partition of the land of which said William died seized, subject to the widow’s estate in dower, the widow and her husband should have been made parties; and her dower assigned ; and partition should have been made of the residue. And it was error to have directed or confirmed a partition of said tract until such dower had been assigned; it not appearing, and there being nothing *to justify the court in presuming, that such estate in dower had terminated. It is therefore ordered and adjudged, that so much of said decrees as is herein declared to be erroneous, be reversed, and the residue thereof be affirmed; and that the appellee H. J. Snead pay to the appellant his costs. And the cause is remanded, with instructions to require the appellees to make said widow and her husband parties, if such dower estate is still in existence; and for further proceedings, in order to a partition of sgid lands, in order to a final decree.

Decree reversed.  