
    * Hetty Newhall versus Stephen Sadler.
    A decree of the judge of prohate, assigning the whole of the real estate ot an intestate to the eldest son, on condition that he pay to the other children the value of their respective shares in money within three years, but without talcing security for the same, may be avoided by the other children, as not authorized by the statute; without appealing from such decree.
    
      This was a writ of entry, wherein the said Hetty demanded seisin and possession of one sixth part of the premises described in the writ, as daughter and one of the heirs of Jonathan Newhall, who died seised of the same in March, 1800.
    At the trial of the action, which was had here at the last April term, upon the general issue joined, before the chief justice, the seisin of the said Jonathan was admitted, and also the heirship of the demandant, as stated in her writ.
    The defence was, that the said Jonathan having died intestate, certain commissioners appointed by warrant from the judge of probate for this county, having appraised the estate of the deceased, assigned the whole of the same to Thom.as F. Newhall, the eldest son; because they were of opinion, that the same could not be divided among the heirs without prejudice to or spoiling the whole; and they ordered him to pay to the other heirs their several proportions of the appraised value of the estate ; the sum to be paid to the demandant being 247 dollars, 53 cents, which was to be paid within three years from the date of their return, with interest annually. The doings of the said commissioners were approved by the judge of probate; and he, on the 5th of May, 1801, by his decree of that date, assigned to the said Thomas F., his heirs and assigns forever, the whole of the said estate, “ upon condition that he shall pay to the other children of said deceased, or to their lawful representatives, the several sums of money, at the time and with interest, as ordered in said return of said commissioners.”—No security was ordered to be given to the heirs, and none was in fact given, for their several shares; but the said Thomas F. entered upon the whole of the estate, and died seised thereof, leaving a widow and one child; which widow had since intermarried with Sadler, the tenant, who in her right defended against the claim of the demandant.
    [ * 123 ] * In order to ascertain whether the sums to be paid to the several heirs, and particularly to the demandant, had been paid pursuant to the decree of the judge of probate, evidence was gone into on both sides ; from which it appeared that the first payment made to Reuben Newhall, who was the guardian of all the children of the said intestate, was made in April, 1804, when the interest was paid up to that time. Payments were made after this, until 1810, of the interest, generally every year, but sometimes once in two years; and in May, 1810, the whole share of Mary Ann Newhall, one of the heirs, was fully paid.
    The demandant came of age in February, 1812, at which time nothing had been paid expressly on account of the principal of her share ; but the interest had all been paid up.
    The said Sadler continued to make payments to the said Reuben 
      
      N. down to March, 1819; and at the trial he contended that he had paid the whole sum due to the several heirs, according to the decree of the judge of probate. This being denied by the demand-ant, the jury were instructed to consider the evidence, and to return their verdict for the demandant or the tenant, according as they should find the fact of payment of the whole sum or not; and they returned their verdict for the tenant.
    Questions arose upon the validity and effect of the decree, about which the chief justice gave no opinion at the trial, but reserved the same for the consideration of the whole Court.
    It was contended for the demandant, that the decree was void, not being pursuant to the statute, which provides for the distribution of intestate estates; and that, if not void, as the estate was assigned to the said Thomas F. upon condition of paying to the several heirs their respective proportions in three years, with interest annually, the failure to perform that condition defeated any title under the decree. It was contended, also, that the receipt of interest by the guardian of the demandant, during her * minority, could [ * 124 ] not operate against her as a waiver of the strict performance of the condition of the assignment; and that payment, aftei she came of age, to Reuben Newhall, who had been her guardian, could have no effect at all upon her rights.
    It appeared that the demandant had never, since her coming of age, made any application to the tenant, or to the said Reuben New-hall, for money on account of her share in her father’s estate; and that the said Reuben was of sufficient ability to pay all which he had received on account of the said heirs.
    If the Court should be of opinion that the said Thomas F. New ZiaZZhad'no legal title to the share of the said Hetty in the said estate, the verdict was to be set aside, and the tenant to suffer judg ment by default; otherwise judgment was to be rendered on the verdict.
    
      Sumner, for the demandant.
    Suppose the assignment of the estate by the judge of probate in this case to have been such a one as the statute required , still the demandant must prevail, on the ground that the assignee failed to pay the money within the time limited by the decree.
    By this failure of payment an absolute estate vested in the other heirs. The three years allowed by the judge, for the assignee to pay the money, may be compared to the three years allowed a mortgagor, to redeem his estate, after the mortgagee has entered for condition broken; in which case, if the money be not paid within three years from the time of such entry, the estate becomes absolute in the mortgagee .
    Should it be said that the acts of Reuben Newhall, the former guardian of the demandant, under this decree, and his acquiescence under its provisions for so long a time, amount to a waiver by him of all objections to its sufficiency; the answer is that, although the guardian might, had he been himself the party in interest, have done such acts, as would have amounted to a waiver; still he f * 125 j could * not, by any such acts, affect the estate of his ward, he having no control in that character over such estate, except so far as related to the rents and profits.
    But we say that this was not such an assignment as the statute contemplates, and that no estate whatever was, in fact or in law, assigned to Thomas F. Newhall, the supposed assignee. The interest he had in the land, by virtue of the decree of the judge of probate, may be compared to that of a mortgagor, whose right of redemption has been taken and sold upon execution. In such case, the mortgagor has no estate at all in the premises, but merely a right of preemption. He has a right, to the exclusion of all other persons, to become the purchaser of the estate, at any time within a year from the sale of the right of redemption . So in the case at bar, Thomas F. Newhall had, at best, but a mere right to become the purchaser of this estate, at any time within the three years allowed him by the judge, in which to pay the money to the other heirs.
    We say, however, that there was not only no assignment, by this decree, of an estate to lake effect in futuro, but that the decree was to alt purposes void. This fully appears from the very section of the statute, which gives to the judge of probate his whole authority in the case. It appears also from the construction the statute has received from this Court . The statute is in derogation of the common law, and should not be extended by construction beyond what the legislature intended; more especially as it is a kind of statute conveyance, by which the heirs, whether willing or unwilling, are made to part .with their estate.
    That the assignment of the real estate, in this case, was not voidable only, but merely void, will appear from the case of Hunt vs. Hapgood Sf Al. before referred to, and from the cases of Smith vs. Rice, 11 Mass. Rep. 507; Smith vs. Bouchier & Al. Strange, 993; and Perkins vs. Proctor & Al. 2 Wils. 382. W. Jones, 170 It had, in truth, none of the properties, which the statute requires. No money was * paid by the supposed assignee, [*126] at the time of the intended assignment; and no security was given for the future payment of it. For surely that cannot be considered as security within the meaning of the statute, which makes no provision for the interest, and which leaves the principal itself liable to diminution, at the will of him who is to give the security. And this was the case in the present action ; inasmuch as the supposed assignee was, by the decree, put in possession of the premises, with liberty to take to himself the rents and profits, and to manage the estate in such manner as to render it of much less value to the heirs, should it ever revert to them, as it was liable to do ; it being optional with the assignee to take or leave the land, at the expiration of the term fixed by the judge for the payment of the money.
    This decree then does not present a case of mere indiscreet exercise of authority given, which would make it voidable, but an exercise of authority not given, which renders it void." The judge of probate is an officer created by statute ; and so long as he acts within the compass of his authority, his acts are valid; and final, if no appeal is claimed. But when he transcends that authority, his acts, like those of a private man, are extra-official and a mere nullity.
    The argument for the demandant derives much force, from a view of some of the consequences of considering the assignment in this case valid.
    Besides the evil already suggested, arising from the possession of the premises by the assignee, a conversion of the rents and profits to his own use, and a restoration of the land at his option, diminished in value by bad management; suppose, during the term he is in possession, he should convey the estate to a stranger: at the end of the term allowed by the judge, the heirs call for their money, and he is unable to respond ; the estate is conveyed, and the avails squandered, or appropriated to the payment of some debt. The heirs then bring their action to recover * the land. [ * 127 ] Suppose them to prevail, the grantee has lost his pur-chase money; suppose them to fail, they have lost their inheritance. In either case, a way is open to fraud, against which neither the heirs nor the community can protect themselves.
    It is, on the whole, believed, that the case admits of no view, in which the proceedings of the judge of probate can be considered as valid.
    Lincoln, for the tenant.
    The decree in this case being agreeable to the uniform practice of the Probate Court in this county, it is of great importance that it should be supported. A contrary decision, would shake the titles of very many estates. It would therefore better comport with useful public policy, that the condition of the assignment should be held void, rather than the assignment itself.
    But the proceeding here was conformed to the letter of the statute, the true meaning of which, it is contended, is that the money is either to be paid, or security is to be given, within reasonable time, as the judge shall order, upon view of the whole matter. The effect of the decree was to vest a fee simple conditional in him, to whom the land was assigned. The estate was to become absolute, on payment of the money within the time limited, or at any time after with the assent of the party who was to receive it. Every one may renounce a provision made for his benefit. The receipt oí the interest by the demandant’s guardian, after the expiration of the three years, amounted to a waiver of any exceptions on her part, to the neglect of a punctual fulfilment of the condition. He was competent to bind her by his assent. The whole sum was paid to her authorized agent, before the commencement of her action. That Reuben Newhall was her authorized agent, must be inferred from her acquiescence in his acts on her behalf for so many years .
    If heirs are, in this mode of proceeding, liable in certain events to lose their inheritance, so would they be, if other secu- [ * 128 ] rity were given. Sureties may fail, as well as * their principal; and many instances have occurred of losses arising in this way. But if the judge should consider the assignee’s note to be “'good security ” within the statute, he may direct this to be given without requiring sureties. If this were done, and the assignee were to become insolvent, before the time fixed for payment, it would hardly be contended that his estate was by this means divested. There may be a defect in this provision of the statute, and it may be desirable that the law should be improved in this respect; but that is not the concern of this Court.
    A comparison of the case of Smith vs. Rice, before cited, with the case of Rice & Ux. vs. Smith 
      , will show the proceedings of the judge of probate not to be void.
    
      
      
        Stat. 1783, c. 36, § 5.
    
    
      
       11 Mass. Rep. 472, Goodwin vs. Richardson
      
    
    
      
       12 Mass. Rep. 389, 390.
    
    
      
       4 Mass. Rep. 120, Hunt vs. Hapgood & Al.
      
    
    
      
       11 Mass Rep. 512, Smith vs. Rice.
      
    
    
      
       14 Mass. Rep. 491.
    
   Parker, C. J.

The decree of the judge "of probate, assigning the whole of the real estate of Jonathan Newhall, to Thomas F. Newhall, the eldest son, upon condition of his paying to the respective heirs their proportion of the appraised value, was not conformable to the statute authorizing such assignment. That statute empowers the judge of probate, in the case therein provided, to order the whole estate to the eldest son, &c., he paying the other children of the deceased their equal and proportionable shares of the true value thereof, upon an appraisement to be made as therein is provided or giving good security to pay the same in such convenient time as the said judge shall limit and appoint, with interest, &c. Unless these terms are complied with by the judge, he has no authority in the case.

In the case before us, there was neither payment nor security, when the decree was passed; and therefore, if not absolutely void, it was voidable by the heir; unless some act has been done, tending to ratify and confirm the title, thus attempted to be created by the decree. It seems to have been considered by the judge, that, as his decree was conditional, the heirs had a security, by way of mortgage, upon their inheritance. But it is obvious that * this was not the intent of the legislature, in requiring [ * 129 ] good security to be given ; for this security would be good only for the value of the land at the time of the appraisement; and if that should fall in value, the security would be inadequate. And further, it would be in the power of the assignee to diminish the value of the land, and then throw it upon the heir for the debt. there being no personal security for the payment of the money.

If the money, in such a case, should be paid within the time limited, the difficulty might possibly be cured. But, in the case before us, there was no payment whatever to the heir; and at the time of her coming of age, the condition of the assignment had not been complied with. We cannot consider the acts of the person, who had been her guardian, binding upon her after she came of age ; so that there is no ratification on her part, and no waiver of her right to avoid the assignment. The verdict must, therefore, be set aside, and the tenant be called.

Tenant defaulted,  