Whitman v. Watson , 16 Me. 461 ( 1840 )

The opinion of the Court was by

Emeby J.

This case does present questions of importance in regard to proceedings in the Probate Court almost forty years ago. And though questions have sometimes been agitated as to the propriety of holding void the proceedings anciently, of that Court, as to the reversion of the widow’s dower, if done by way of distribution before her death, on the ground of a want of jurisdiction, where too no appeal had been interposed. Yet it seems now to bo well settled. Sumner v. Parker, 7 Mass. R. 79.

If the Judge of Probate adopt a course expressly prohibited by law, or the decision be upon the rights of persons, and has been made without their being notified, or over whom, he has not jurisdiction, if there be no laches attributable to the party grieved, to obtain redress by appeal, it is left to that party to consider the proceeding void.

But if the party had an opportunity to appeal, and if he had assented to those proceedings, it would not meet with so ready admission that the individual should treat the act or decree as ineffectual.

Henry Dinsdell was the original owner of the estate in question, and in 1802 it was assigned to the widow, which she held as her dower till 1835. On the 28th of April, 1803, the Judge of Probate, on its having been made to appear to him that the estate could not be divided without great prejudice to or spoiling the whole, and that it would not accommodate more than one, and that William, Dinsdell, the oldest son, was willing to accept the whole and pay out to the other children their equal shares, according to an appraisement then made, ordered the whole to him, directing him to pay to the defendant, who is a daughter of the said Henry} and to three other daughters, three hundred dollars each with interest, and on that 28th day of April, 1803, said William gave a bond with surety to the defendant, to pay her share of $300, which was, by an indorsement on the back of the bond, under date of January 28, 1807, acknowledged by her and her husband to have been paid in full.

Though it is not set forth that any special direction was given by the Judge of Probate that security should be given, as bond was given to the defendant that day with surety, to pay that sum, which she and her husband acknowledged to have been paid in full, we consider that as to this party, it must be held that she assented to the assignment, and has really had her enjoyment of the value of the portion of her father’s estate over thirty-three years. And the principal objection in the argument against the plaintiff’s claim as against her, is, that it does not appear that the other children have been notified, or assented to the assignment to William.

This case, as to its principal elements, to wit, the decree of the Judge, and the acceptance of the bond and its payment, arise under the Massachusetts statutes previous to the separation. And without going into a minute criticism upon the cases of Hunt v. Hapgood, Sumner v. Parker, Newhall v. Sadler, Proctor v. Newhall, and others which have been cited, we must regard the opinion of the Court in Rice & ux. v. Smith, 14 Mass. R. 431, as an authority in support of our construction. It is there expressly held, that the proceedings of the Probate Court may be valid and effectual as to the share of one of the heirs, though ineffectual as to the share of another, and that the reception of the money awarded to an heir, and a certified assent to the assignment, is equivalent to direct evidence that she was notified of the proceeding, and is indeed stronger than, such evidence ; because, instead of an implied and tacit assent, it shews an express agreement, and a waiver of all objections to the proceedings. And in the facts agreed, we must take the acknowledgement in this case of the defendant and her husband, that the bond for her share has been paid in full, as including substantially all that was proved in the case of Rice & ux. v. Smith, 14 Mass. R. 431. It amounts to an equivalent to notice, an assent to the proceedings in the Probate Court, and a waiver of all objections to them. According to the agreement of the parties as reported to us, judgment must be rendered, that the demandant recover the premises demanded and costs.