F. T. Larrabee Co. v. Mayhew ( 1925 )

There are irregularities in the probate proceedings involved in the controversy in question in the present action, some of them of sufficient moment possibly as to require reversal on appeal or a setting aside of the proceedings in some other form of direct attack. But I cannot think them vulnerable to a collateral attack (the form of attack made upon them in the present instance), much less can I think them void for the reason given in the majority opinion. The majority hold the partition proceedings therein had were "in fact and in law a sale" of the property, and therefore void.

With this holding I am unable to agree. The proceedings were had in accordance with the then existing statutes. The statutes are found in Rem. Code at §§ 1579 to 1609. These sections provide a scheme for partitioning estates among the heirs of the estate. There is nothing unusual in them. They provide in substance that, at any time after the settlement of the final account of the executor or administrator, the court shall proceed to distribute the residue of the estate among the persons who are by law entitled thereto; that the application for distribution may be made by any one interested in the estate either as executor, administrator, heir or legatee; that notice of the application shall be given in the manner required in an application for the sale of land by an executor or administrator; and that the court may appoint commissioners to make the partition. Sections 1595 and 1596 of the act read as follows:

"When any such real estate cannot be divided without prejudice or inconvenience to the owners, the court may assign the whole to one or more of the parties entitled to share therein, who will accept it, providing the party so accepting the whole shall pay to the other parties interested their just proportion of the true value thereof, or secure the same to their satisfaction, and the true value of the estate shall be ascertained by the commissioners appointed by the court, and sworn for that purpose.

"When any tract of land or tenement shall be of greater value than either party's share of the estate to be divided, and cannot be divided without injury to the same, it may be set off, by the commissioners appointed to make partition, to either of the parties who will accept it, giving preference as prescribed in the preceding sections; provided the party so accepting shall pay or secure to one or more of the others such sums as the commissioners shall award to make the partition equal, and the commissioners shall make their award accordingly; but such partition shall not be established by the court until the sums so awarded shall be paid to the parties entitled to the same, or secured to their satisfaction."

There is here, it seems to me, direct warrant in the statute for the court to do what it did do in this instance, set aside the whole of the real property to one of the heirs of the estate and require the heir to pay to the other heirs the value of their interests, and I am utterly unable to understand how a thing which is done by authority of law can be in violation of law.

But perhaps the real ground on which the majority rest their conclusion is that the property was awarded to the administratrix, and since she was the general guardian of some of the infant heirs, she was not qualified to take the property. If this be the purport of the decision, I also think it without foundation. The statute does not make this a disqualification, nor can I conceive of any public policy which disqualifies her on that ground. The only limitation imposed by the statute is that the person to whom it is assigned shall be "entitled to a share therein," and here the administratrix was so entitled; in fact, her interest was larger than the interest of any other person. The administratrix had no voice in determining whether the property could or could not be equitably divided, and no voice in determining how much the party taking had to pay for the interests taken. The partition was the act of the court, not that of the administratrix, and it is not to be supposed that the court could not or did not protect the interests of the heirs.

I, of course, concede the rule that a trustee cannot lawfully become the purchaser of the property of his cestui que trust at a public sale of the property where he is the inducing cause of the sale, but I cannot think that a partition of property is in any sense a sale of property; and this, whether the property be divided between the respective owners equally, or unequally with owelty to the other owners. The statute does not so denominate it. On the contrary, that the legislature sought to make a distinction between a partition and a sale is evidenced by the fact that the statute makes an alternative provision for a sale of the property and a division of the proceeds of the sale if the commissioners appointed to make the partition recommend it and the court approves of the recommendation. Again, the doctrine of owelty of partition is ancient. From the earliest times, courts of equity, in the absence of statute authorizing it, have exercised the power to divide property unequally between co-owners and award compensation to equalize the division. Yet no such court has, in so far as my investigation has gone, treated or regarded the action as a sale. Moreover, if the definition of a sale noted by the majority be applicable to the situation, then there never can be any partition of property between co-owners where one occupies the relation of trustee to another. From the very necessities of the case the title one of the owners has in a part of the property is taken from him and vested in another, and if the transaction is void when one of the parties receives the greater portion of the property, it is equally void when there is an equal division.

The statute is but declarative of the equitable principle noted, and since the proceeding has the sanction of both equity and the statute, I cannot persuade myself that it is void.

I think I need not pursue the inquiry further, nor would I pursue it at all but for the matter now to be mentioned. The statute under which these proceedings were had stood on the statute books from early territorial days until its repeal by the enactment of the late probate code. The method of partitioning property among the heirs of estates therein pointed out has been the common practice of courts sitting in probate. Many titles depend upon the validity of the proceedings, and I fear a number of these are unsettled by the decision.

It is my opinion that the decree of the trial court should be reversed.