
    Benjamin Rice and Lucy his Wife versus Peter Smith.
    A decree of the judge of probate, allowing the return of commissioners for dividing the real estate of an intestate among his heirs, &c., and who had assigned the whole to one, she paying to the other heirs respectively a certain sum, although void as to one of the heirs who had no notice, was held good as to another, who had assented to the assignment, and had received the sum awarded to her by the commissioners.
    This was a writ of right, in which the said Benjamin and Lucy, in her right, demanded six several parcels of land described in their writ.
    * The tenant pleaded the general issue, which, being joined by the demandants, was tried before Wilde, J., at the sittings here after the last October term.
    
    It was proved or admitted, at the trial, that one Israel Smith was seised of the demanded premises in fee, and died so seised and intestate in the year 1802, leaving no issue; but leaving a brother, the said Peter, and threé sisters, of whom the said Lucy is one, and Abigail Smith, his mother, his only heirs; that the .whole of said lands were assigned to the demandants in March, 1804, by a decree of the judge of probate for this county, in the manner stated in, the report of the case of Smith vs. Rice, (ante, vol. xi. p. 507,) except that the demandants were directed by said decree to pay to the said Abigail the sum of 531 dollars 51 cents, as to the other heirs as therein.stated; and the said sum was accordingly paid by the demandants to the said Abigail, who received the same, and thereupon certified her assent to the said assignment; that the said 
      Abigail afterwards died, leaving the said Peter and Lucy and their two sisters her children and heirs at law; and that after this the said Peter recovered judgment, in a writ of entry against the demandants, for an undivided fourth part of said premises, and has ever since continued to hold the same.
    On these facts the demandants contended that the tenant had no right to hold more than a fifth part of the said premises, and that said Abigail’s share passed to the demandants by the said decree of the judge of probate, and her assent thereto; and therefore they claimed a right to recover of the said Peter one twentieth part of the said lands; thereby reducing the said Peter’s share from one fourth to one fifth part.
    The tenant contended that the decree of the judge of probate was merely void; that it was against the provisions of law, as decided in the said case of Smith vs. Rice ; and that said Abigail’s assent could not give jurisdiction to the judge of probate, or render the proceedings in the Court of Probate valid, so as to pass said Abigail’s share to the demandants.
    * But the judge, being of opinion that the proceedings in the Probate Court were voidable only, and that the said Abigail’s assent to them was sufficient to render them valid in respect to her share, instructed the jury accordingly ; and they returned a verdict for the demandants for an undivided twentieth part of said land.
    If this opinion should be deemed correct by the Court, judgment was to be rendered for the demandants, agreeably to the verdict; otherwise the verdict was to be set aside, and the demandants were to become nonsuit.
    
      Prescott, for the tenant,
    argued that the assignment by the judge of probate, having been found void as respected the said Peter, was void in the whole ; and Abigail Smith thus having been seised of one fifth part of the land by inheritance from her son, her right had descended to the tenant and his sister, upon her dying intestate, one fourth part of which appertained to the tenant. If this should be contested on the ground that Abigail’s assent to the decree of the judge of probate may be considered as a conveyance of her purparty to the demandants, the answer is, that such a conveyance is void by the statute of frauds.
    
      Hoare, for the demandants.
    The decree was held to be void in the decision of the former action, as it respected the tenant, because he had no notice of the proceedings. But Abigail Smith not only had notice, but she certified her assent to the decree, and received the money awarded her as an equivalent for her share of the land. As to her, then, the judge had jurisdiction; and if his judgment was wrong, her only mode of avoiding it was by appeal.
   Per Curiam.

On the trial of the former action between these parties, it was not known, or at least it was not proved, that Israel Smith had a mother living at his death. If this fact had appeared at that trial, it might have saved the parties the expense of the present action.

It is now said that the partition or assignment in the Probate Court, being void in part, is void in the whole; * and that therefore Abigail Smith’s right to one fifth part descended, at her decease, to all her children. If so, Peter Smith is entitled to one fourth part, which he formerly recovered.

But we are satisfied that the proceedings in the Probate Court were valid and effectual as to Abigail’s share. The avoidance of it as to Peter has no effect whatever as between Rice and the other heirs. Their respective proportions, whether of land or money, remain the same ; and none of them are prejudiced in any manner by the mistake or error as to Peter.

Abigail received the money awarded to her, and certified her assent to the assignment. This is equivalent to direct evidence that she was notified of the proceedings; and is, indeed, stronger than such evidence; because, instead of an implied and tacit assent, it shows an express agreement, and a waiver of all objections to the proceedings. If the heirs had all joined in a deed for the conveyance of the premises to Rice and his wife, and afterwards the deed, as it respected Peter, had been avoided for duress or insanity, &c., it might as well be said that this would avoid it also as to the other grantors,

Judgment according to the verdict. 
      
      
        [Newell vs. Sadler, 16 Mass. Rep. 132. — Ed.]
     