
    Nathan Pond and Another, Petitioners, &c., versus Amos Pond and Others.
    The Probate Court is authorized by statute to make partition of real estates among heirs or devisees ; but, when one of the heirs or devisees has conveyed his purparty, the jurisdiction of that Court in the premises is at an end. (f) J
    (1) See Pond vs. Pond, 14 Mass. Rep. 403. — Stearns &■ al. vs. Stearns, 16 Mass Rep. 167.
    [t See Rev. Statutes, c. 103, § 50. — El.j
    This was a petition for partition, in which the petitioners alleged, that they were seized as tenants in common, namely, Nathan Pond of two ninth parts, and Ziba Pond, a person non compos mentis, under the guardianship of Nathan Pond, of one ninth part, of the real estate described in their petition, whereof Benjamin Pond lately died seized in fee, and intestate ; and they pray that their shares may be assigned to them, to hold in severalty.
    The respondents, Jlmos Pond, Leonard Pond, and Ichabod Pond, brethren of the petitioners, severally pleaded, that they were sole seized of certain parts of said estate, describing them.
    
      The commissioners replied, that they were seized in common, as aforesaid, and traversed the sole seizin of the respondents, upon which issue was joined.
    This issue was tried before Putnam, J., March term, 1815, when the respondents, to prove their sole seizin, produced in evidence a warrant from the Judge of Probate of this county, and certain pro ceedings had thereon, making partition of the said estate among four of the children and heirs of the said deceased, namely, the said Amos, Ichabod, Leonard, and Nathan, they paying to said Ziba $421.55, in equal shares, in full for his part of said estate. * The said warrant was dated the 22d of April, 1812, the report of the dividers on the 9th of May, and the acceptance thereof by the Judge of Probate on the 2d of June following.
    The said deceased left nine children and heirs. There had been no payment to Ziba, according to the decree aforesaid ; but the respondents had given bonds in the probate office, to pay their several parts, one third in one year, one third in two years, and one third in three years, with interest.
    The petitioners proved, that Benjamin Partridge and Milcah, his wife, in her right, by deed, dated March 5, 1812, conveyed to Benjamin Pond their right in the estate of her father, the said Benjamin Pond, deceased ; also, that Abijah P. Clark and Melatiah, his wife, in her right, by deed, dated May 6, 1812, conveyed to the said Nathan Pond all her right in the estate of her father, the said deceased ; that the whole estate was divided into four parts, one to the said Nathan, and one to each of the respondents ; and, on their part, the respondents proved, that they and the said Nathan respectively entered into possession, and occupied the parts assigned to them in severalty, the said Nathan occupying only in the year 1812, and none of the parties having made any division fence.
    The respondents also contended, that the report of the dividers was accepted by the Judge of Probate, with the consent of all the parties, as is also stated in the record of the proceedings in the probate office. But the fact was denied by the petitioners ; and the respondents produced no other evidence of their consent; the petitioners not having been present when the report was accepted.
    The respondents also produced a memorandum of an agreement not sealed, but signed by the said Ichabod, Amos, Leonard, and Nathan, for himself, and as guardian to said Ziba, and the said Benjamin Pond, dated the 9th of April, 1812, reciting that they had settled the personal estate, and agreeing that Elias Cook, C. Kollock, and A. Morse, * should be referees to divide the estate of the said Benjamin, deceased, into four equal parts ; and that the said Amos, Ichabod, Leonard, and Nathan 
      should pay equally alike to the other heirs, and have their parts by choice, agreeably to a former agreement.
    The said agreement had reference to certain bonds, dated the 37th of February, 1813, of the penalty of $10,000, stating that the said Jlmos and Leonard of the one part, and the said Ichabod, Nathan, and Benjamin, of the other part, had chosen the said Cook, Kollock, and Morse, to divide the said real estate into four equal parts, and conditioned to abide by their award, to be made before the first day of May then next, “ the four parts to be taken by four of the sons, each of them to choose his part according to his age.”
    The said Cook, one of the referees and dividers, was sworn, at the request of the respondents, and testified, that he and the other referees made the division ; and that it was suggested, that it would be better to have the business go through the probate office ; that all the heirs were notified when the report of the referees would be made to the Judge of Probate.
    The petitioners contended, that the partition set up was not, and was not pretended to be, according to the agreement between the parties ; that the proceedings in the probate office were void, because the estate did not remain in the heirs as it had descended to them, but had been assigned by some to others of them, which ousted the Probate Court of its jurisdiction in the premises ; that the right of the said Ziba, the non compos, especially, could not be thus divested ; that the several occupation of the said Nathan, being under an ignorance of his rights, ought not to prejudice him ; that no consent of the parties could give the Judge of Probate jurisdiction in the premises ; and, if it could, the non compos was not able to give it ; and that, if the Judge of Probate had jurisdiction, such * proceedings had not been had as to give effect to the pretended partition.
    Intending to reserve the questions of law, the judge directed the jury from this evidence to give a verdict for the respondents ; which they did. And, if the Court should be of opinion, upon a consideration of the whole of the case, that the' petitioners were seized in common of the said real estate, the verdict was to be set aside, the respondents defaulted, and judgment rendered for partition, accord ing to the prayer of the petition ; otherwise, the verdict was to stand, and judgment to be rendered thereon.
    The cause was argued, at the last October term in this county, by Haven, for the petitioners, and Hastings, for the respondents ; and, at the last February term, the opinion of the Court was delivered by
   Putnam, J.

Tenants in common may compel their co-tenants to divide their lands, either by writ of partition at the common law ; or by petition for partition, in the Court of Common Pleas, or in this Court, according to the statute of 1783, c. 41 ; or, lastly, bv proceeding in the Probate Court, for a distribution according to the rules of the descent of real estates, or according to the wills of te» tators which have been allowed and approved.

If the partition in the case at bar can be supported, it is on the ground of the proceedings which the parties have had in the Probate Court. For a partition by deed could not have been made ; inasmuch as one of the heirs was, and is, non compos mentis ; and it is not pretended, that there has been any writ of partition, or any division pursuant to the statute, authorizing the courts of common law to make partition by petition.

We are, then, to review the statutes relating to the Probate Court, to ascertain if the proceedings there have effected a partition of the premises according to the rules and limitations prescribed.

By the act of 4 Will, & Mar. c. 8, the distribution of the residuum of estates of intestates was to be made * among the children of the intestates, and such as should legally represent them, by a committee of freeholders under oath, to be appointed by the Judges of Probate. And by this act, and that of 6 Geo. 1, the judge may divide the estate into as many parts as can be done with convenience, and settle the same on one or more of the heirs, he or they paying the co-heirs their portions in money, according to a just appraisement.

These provisions are substantially reenacted in the revised statute of 1783, c. 36 ; and by the 12th section the Judge of Probate may make partition, by a committee of freeholders, among devisees. He is also authorized to take into consideration any advancements which may have been made by the intestate to his children.

Upon consideration, we are satisfied, that the power of the Probate Court is confined to cases of partition of intestate estates among the heirs, and of estates among devisees, giving to each his portion of land, or in money, according to the rules of descent, or the will of the testator, and not according to rights acquired by purchase.

In the case at bar, there were nine heirs of the intestate. They had certain proceedings in pais, which were intended to settle the estate upon four of the heirs, who had bought out the shares of the others who were capable to act, and paying to their brother, who was non compos, his proportion in money ; and it was supposed, that these proceedings might be ratified, as one of the referees testified, “ by passing them through the Probate Court.” All this may, for aught we know, have been very equitable ; but the statutes have not authorized the Probate Court to carry such informal agreements into effect. It would, in effect, prevent the judge from exercising his discretion in such cases. If the estate should not be divided into as many parts as there are heirs, it ought to appear that it was divided into as many as, in the opinion of the judge, it could be with convenience.

* And, in making the distribution, he cannot take notice of any conveyances, which may have passed between the heirs, or from any of them to strangers. Indeed, where any persons claim before him as purchasers, his jurisdiction is at an end. He is not authorized to make partition between them. This seems to have been under the consideration of the legislature. For, in the act of 4 W. & M. before cited, there is a provision, that, “ where all parties interested in any estate, being legally capable to act, shall mutually agree of a division among themselves, and present the same in writing under their hands and seals,” and acknowledge it before the Judge of Probate, and the same shall be accepted and allowed by him and recorded, it shall be a valid partition.

This provision being, in effect, nothing more than a partition by deed at common law, was not reenacted in the revised statute of 1783 before cited ; and for good' reason. For, if the parties interested in real estate, being capable to grant, should make their partition by deed, there was no necessity of troubling the Court of Probate, or any other court, with the matter. It was valid in itself, without their ratification.

By the said revised statute, the judge is not required to notice, or govern himself by, the agreements of parties, although under seal. It was undoubtedly perceived that he has no mode of determining their validity. It is true, indeed, that he must necessarily determine some facts, which are incidentally involved in matters clearly within his jurisdiction. He is to ascertain who are the heirs at law, among whom the distribution is to be made according to the statute ; — whether any of them be dead, and, if so, who are their legal repre sentatives ; — and so of other facts, which are, for the most part, ot general notoriety.

But the facts which arise from conveyances or assignments are not only various, but intricate. He can summon no jury, to try whether the paper, produced as the deed of the party, was obtained by fraud or duress, or * upon an usurious consideration ;—-whether the erasures or interlineations, which may appear in it, were made before or after it was executed ; — whether, in short, the paper was ever executed as a deed, or not-

The proceedings in the Probate Court must be governed by a sound discretion, having reference to the number and situation of the heirs, and the number of parts into which the estate may be conveniently divided. The judge is to distribute to those who claim as heirs or devisees, not to purchasers. Their claims are to be settled by other courts, having juries, upon common law principles. Nor can the parties give the Probate Court jurisdiction by consent. Such a delegation to the judge would confer no more power than if t were made to the sheriff, or any other individual of the community, not authorized in the premises. Any assent, therefore, which either of the parties may have given to the proceedings in the Probate Court will not legalize them.

It appearing, in the case at bar, that some of the parties before the Probate Court claimed as purchasers, as well as by descent, and that the distribution was made accordingly, the proceedings there are void ; and, as one of the heirs was non compos mentis, we are of opinion, that a lawful partition could be effected only by writ of partition at the common law, or by petition for partition to the courts of, common law jurisdiction, competent to decide upon all the claims and pretensions of the parties.

The verdict in this case must be set aside, the respondents defaulted, and commissioners appointed to make the partition, according to the prayer of the petitioners. 
      
      
        Anc. Chart., &c., 230.
     
      
      
        Ibid., 426.
     