
    Mary Stearns and Others, Appellants, versus William Stearns and Others.
    Where a judge of probate appointed commissioners to make partition of an intestate’s estate among the heirs, pending a petition for partition instituted by some of the heirs, and an action by the widow of the intestate for the recovery of her dower; the decree appointing such commissioners was reversed by this Court.
    This was an appeal from a decree of the judge of probate for this county, made on the 29th of August, 1818, appointing commissioners to make partition of the real estate, whereof Samuel Stearns, who was the husband of the said Mary, died seised, among the heirs of the said Samuel, he having died intestate.
    In the reasons of appeal filed the 26th of September, 1818, pursuant to the statute, the appellants set forth that the respondents, heirs at law of the said Samuel, having for a long time unjustly neglected and refused to assign to the said Mary her dower in said estate ; she, on the 13th of February, 1818, made her legal demand thereof, and after thirty days commenced her action at law for the recovery thereof, which action was pending in this Court at the time of making the said decree. And they say that the judge of probate had no authority by law to make the said decree, pending such action.
    [ * 168 ] *For a second reason they say that the judge of pro bate has no authority by law to order an assignment of dower to any widow, without her consent and against her will, after she has legally demanded the same, and commenced her action for the recovery thereof in a court of common law, and the same action is pending.
    In a third reason they state that, on the 25th of June, 1817, the judge made his warrant to certain commissioners, to set off to the said Mary her dower in said estate, and to divide the residue among the heirs at law of the intestate ; that the commissioners made a return, which the said judge rejected ; that thereupon the present appellants (except the said Mary), who are also heirs at law of the intestate, preferred their petition to the Court of Common Pleas, for partition of the estate among themselves and others interested ; and that the said court took cognizance of the petition, ordered notice to all concerned, and afterwards several of the now respondents appeared and answered to the1 said petition, which was carried by appeal to this Court at its present term. And the appellants deny the authority of the judge to proceed to make partition, while the said petition was pending.
    For a fourth reason, the appellants say that the judge of probate cannot, by law, make partition or settlement among the persons interested in the said estate ; because they hold by different titles, and some of them do not hold by descent or devise ; and the judge has no power to settle some of the necessary facts relating to the titles, according to the course of the common law. The cause was argued at the last October term in this county.
    
      Stearns and Tyler Bigelow, for the appellants.
    The Court of Probate cannot appoint commissioners for dividing estates of deceased persons, or for assigning to widows their dower, when an action is pending at common law to effect the same purposes. Such are the facts in the present case. The warrant to the commissioners embraces the settlement of all the real estate of the deceased, [ * 169 ] including * the widow’s dower. If they should .set out the dower, the sheriff may still go with a warrant from this Court, and set it.out in other lands; unless it should be held that the proceedings in the Probate Court should have the effect to abate the suit pending in this Court, which will hardly be contended. If they should divide the estate among the heirs, without assigning the dower, or if the widow must commence another process to obtain it, she will have to commence as many suits as there shall be shares in the division, and instead of having her estate in one convenient parcel, must receive so many several pieces of land.
    When the appellants commenced their process for partition, by petition under the statute, the Probate Court had no jurisdiction of the case, because some of the shares had been transferred . This was the cause of rejecting the return of the commissioners under the former decree. The judge, apprehending that a new jurisdiction was given him by the twenty-fourth section of the late act to regulate the jurisdiction and proceedings of the courts of probate , made the decree appealed from in this case. It is, however, believed that that provision did not give the judge of probate jurisdiction of this cause, and thus in effect oust the courts of common law of- their jurisdiction, in an action actually before them. The true construction of the clause in question seems to be, that no conveyance by an heir or devisee, made for the purpose of excluding the jurisdiction of the Probate Court, shall have that operation. The many and great inconveniences, that would result from another construction, furnish a strong reason for thus limiting it. Some of these are suggested by the Court in the case before referred to, of Pond & Al. vs. Pond & Al.
    
    
      Ward and Hilliard, for the respondents.
    The heirs are not held to delay the settlement and division of their estate, until the widow shall see fit to procure her dower to be set out. She may proceed to demand it at her pleasure, and if she should be disposed to oppress the * heirs, she might forever prevent a [ * 170 ] division, if her right were in its nature preliminary .
    It is a sufficient answer to the second reason of appeal, that the judge of probate has not ordered an assignment of the dower to be made by the commissioners, whether he had authority or not. The warrant is only to make partition among the heirs.
    The pendency of the petition, stated in the third reason of appeal, was no bar to the proceedings in the Probate Court. It will appear, from an examination of all our statutes on this subject, that the courts of common law cannot exercise jurisdiction in a case like this. But if they can, the powers and course of proceeding in the courts of probate are much more effectual and convenient. In them alone can advancements be considered and adjusted, and there are such existing in the present case. The Probate Court has power over the lands in every county, where they may be; whereas the courts of common law have cognizance of the lands only in the county where they are sitting. The Probate Court can create a new tenancy in common, which a court of common law cannot. Neither can a common law court assign the whole estate to one or more of the heirs, give a preference to males, &c. Further, upon the petition for partition, the division can be made only among the petitioners ; whereas the Probate Court would cause partition among all the claimants.
    The provision of the statute of 1817, c. 190, ■§> 24, is a full answer to the fourth reason of appeal. The conveyance of his share by one of the heirs no longer prevents the proceeding in the Probate Court. ' The judge is not bound to take notice of the transfer. But if he were, it would furnish no more difficulty than many cases of frequent occurrence. He must necessarily be constantly investigating and deciding upon matters of fact, quite as intricate, and of as high a nature, as is the execution of a deed, its consideration, its operation, &c.
    [ * 171 ] *The cause was continued nisi for advisement, and at the last March term at Concord, the opinion of the Court was delivered by
    
      
       13 Mass. Rep. 413, Pond & Al. vs. Pond & Al.
      
    
    
      
      
        Stat. 1817, c. 190
    
    
      
       12 Mass. Rep. 180, Motley & Al. vs. Blake
      
    
   Wilde, J.

It cannot be maintained, as a general proposition, that the probate courts have exclusive jurisdiction of the settlement of real estates, by partition among the heirs, and by assignment of dower to the widow; for authority is expressly given, by divers statutes, to the other courts. All, therefore, that can be contended for is, that the Probate Court has exclusive jurisdiction in all such cases, wherein the provisions of law cannot be enforced aliunde. The facts appearing in the proceedings brought before us upon this appeal, do. not present such a case; and it appearing that an action of dower, and a petition for partition, were pending in this Court at the time of the decree, and were commenced before any proceedings were had in the Probate Court, the decree must be reversed.

When different courts have concurrent jurisdiction, the one before whom proceedings may be first had, and whose jurisdiction first attaches, must necessarily have authority paramount to the other courts; or, rather, the action first commenced shall not be abated by an action commenced between the same parties, in relation to the same subject, in the same or any other court.

It is unnecessary now to inquire, whether cases may not occur, in the partition of estates in common, requiring the interposition of the powers vested in the courts of probate; nor have we much considered the cases supposed. The principal difficulty suggested in this case is, that advancements have been made to some of the heirs, which cannot be fairly adjusted, except in the Court of Probate. The appellants, however, contend that these advancements may be considered in the distribution of the personal estate, and they suggest that a sum sufficient for this purpose remains undistributed in the hands of the administrator's.

It has never been judicially settled, that advancements * made to an heir cannot be taken into consideration in [*172 \ the partition of real estate, except when ordered by the judge of probate. Such advancements may, without doubt, be most conveniently adjusted in the Probate Court. But considerations of convenience will not oust the common law courts of their jurisdiction. Nothing but express words, or necessary implication, can be sufficient for this purpose. If, however, the respondents are right in their law, and the facts will bear them out, they may plead to the petition for partition, and, after a successful defence, may proceed anew in the Court of Probate. At present, the principal point made in the argument' is not judicially before us, and the decree of the judge of probate must be reversed.

Decree reversed.  