Sligh v. Sligh ( 1802 )

This was a proceeding in partition in the district court for New.* berry district, and was brought up to this court upon exception to the decision of the presiding judge. Sundry other cases of partition and dower were submitted, and argued, at the same time and thereupon the following points were resolved and adjudged : ’

1. Where a partition is sued for in cases of-joint estates in lands, the applicant must proceed according to the A. A. 1748, P. L. 218, and the summons must be served on the other, joint owners ; and the commissioners appointed to make partition, musfcf return the writ of partition to the court within three months after it is granted. They are only authorized to divide the lands either’ in entire tracts, or in parcels, as they shall think most beneficial. The applicant must be of the age of twenty-one years, unless another joint owner of that age neglects to apply for the space of twelve months ; in which case any joint owner under age, may have a guardian appointed by the court to sue out partition in behalf of such infant joint owner. And the district courts have authority to appoint such guardians ad litem. The writ of summons to be issued of course, on application to the clerk, as other writs, according to A. A. 1799. (2 Faust, 315.)

ÍÍ. Where paitition is applied for by any person entitled to a distributive share of the real or personal estate of an intestate, the applicant must proceed according to the act of distributions, of 1791, (1 Faust, 27,) and the act for the admeasurement' of dower, passed in 1786. P. L. 408. The applicant must be of the age of twenty-one years, or be married ; and may apply either in the common pleas, or in equity, at his option. The writ of summons io issue, as other writs, on common application to the clerk, according to A. A. 1799. A petition, however, must be filed, setting forth the claim. The proceedings must be such as are directed by the act of 1786, for the adnieasürement of dower, viz. The summons must be directed to the heir (or heirs) at law, if of full-age, (or to such as are of age,) or to his or her guardian,'if an in. fant, (of the guardian of such heirs as are infants.) And if there be no guardian to such infant' heir (or heirs,) then to the administrator of the deceased, who may be summoned, as well as the persons of age who are entitled to a share,'and the guardians of such infants as have guardians ; and Where the deceased has no administrator, then to any other person, or persons, (all persons holding jointly or severally,) who may be in the possession of any of the said lands. The writ of summons must be made returnable fifteen days before the next court, according to A. A. 1'799. The writ of partition must be directed to five persons, two'of whom shall be nominated by each party, anfi the fifth by the court; a majority of whom shall, in one month after the issuing of the writ, mete ou£- and divide the lands, and put each pér'son entitled to a distributive share thereof, in possession of their several parts: and then return a plat of such lauds with a certificate thereon, in writing, under their hands and seals, to be recorded. But if the estate cannot be divided without prejudice to one or more of the parties, the commissioners shall make a special return of the property, and the’ Value of the same, truly appraised, and certify their opinion to the court, whether it is best that one or more of the parties shall have’ the property on payment oi a sum of money to be assessed by the commissioners, or to sell the same at public auction; upon which return and certificate the court shall decide. And the court may direct a sale, or that the whole shall be vested in one or more of the parties, as authorized and prescribed by A. A. of 1791. The service of the writ of summons must be proved in open court on the day on which the same is returnable, as directed by the, aCt'bf 1786. So also, as directed by the same act, in cases where a party summoned shall neglect to appoint commissioners, the court shall do so on the part of such party. The court will appoint guardians to such infant heirs as have no guardians, if the intestate has no executor or administrator, where there is a- minor co-heir, Off' co-heirs, entitled, and the lands cannot be divided without prejudice.

3. Where dower is applied forj the applicant must file a petition in the court of common pleas, as directed by A. A. 1786,’ and sue out a writ of summons in dower, which the clerk is directed' to issue, on application, pursuant to A. A. 1799. The writ of summons to be directed as mentioned in the case of partition for a distnbutory share. The commissioners to put the widow in pos-session of one third of. the land, within one month from the issuing, of the writ. But where the lands cannot be fairly divided, a sum-of money may be assessed in lieu of dower by the commissioners.

4. The writ of summons in cases where it is necessary to-direct the same to an infant,-must be served on the infant; and-at the return of the writ, application must be made to the court to-appoint a guardian ad litem, to shew cause for the infant, why the-writ of partition, or dower, should not issue : which guardian the court may appoint in every partition case, whether under the act of 1748, or under of the act of 1791, although not spescially authorized.