Church v. Church.

liens and dower right, but they would become impressed upon the proceeds of the sale, and on being brought to the notice of the court, would be protected as against Barnes himself or his voluntary assignees. (See Westervelt v. Haff, before Assistant Vice-Chancellor, August 20, 1844, not yet reported,) in which this point was held as to a mortgage, executed pending a suit in partition, which terminated in a decree for a sale. (a)

As to the costs of the proceedings, the case of Hawley v. Bradford, (9 Paige, 200,) is an authority for exonerating Mrs. Barnes from defraying any portion of them. Those costs must be borne by the residue of the fund.

The exceptions to the Vice-Chancellor's report are therefore overruled, with costs to be paid by the exceptant; and an order must be entered for the payment of the fund according to the report, first paying out of the same, the costs of the reference before the Vice-Chancellor.

(a) Since reported, 2 Sand. Ch. R. 98.

Douglass v. Viele.

DOUGLASS v. VIELE and DOUGLASS.

COMMISSIONERS in partition, who at the same time were admeasuring dower in the same lands under an order of the surrogate, in dividing the lands between three tenants in common, after assigning dower to the widow, allotted the residue to the owners in such manner that two of them took their shares free from dower; the commissioners intending to set off to the third, an infant, the lands subject to dower, with a small parcel besides; and that arrangement was agreed to by one of the owners who was an adult, and by the guardians ad litem, of the two other owners who were infants. By their report of the partition, the commissioners omitted to mention the dower lands, or to allot them to the party intended, but allotted to him merely the small parcel which was free from dower; and the report was confirmed, a judgment entered thereon, and the error was not discovered till nearly thirty years afterwards, the widow having survived all the intervening period. The dower lands added to the small parcel, made that share equal with each of the other shares allotted in the partition.

Held, that the agreement between the adult and the guardians, was invalid, and that the occupation by the two who received their full shares, and the sale of such shares, were not a ratification of such agreement, or an acquiescence in the third owner's right to the dower lands.

Held, further, that on the ground of accident, a court of equity could grant relief, and could give full effect to the defective partition, according to the original design of the commissioners, and the justice of the case.

Albany, January 17; March 19, 1846.

THE bill in this cause was filed, April 4, 1844, by Samuel Douglass against Hannah Viele and Stephen P. W. Douglass, for relief in respect of a parol agreement on the partition of the lands of Samuel Douglass, deceased, the father of the parties, who died intestate on the 14th of December, 1811. The material facts exhibited by the pleadings and proofs, are in part to be found in the opinion of the court, and referring to those, may be briefly stated as follows:

S. Douglass the elder, died seised of about three hundred and eighty acres of land in Pittstown in the county of Rensselaer. His only heirs were Hannah, the wife of Abraham L. Viele, a daughter of his first wife; S. P. W. Douglass, the infant son of the intestate's deceased son William S., who was also a child of his first wife; and the complainant, an infant. The intestate's

Douglass v. Viele.

widow, the mother of the complainant, subsequently married Mr. Gardner. Early in 1814, an ejectment was commenced in behalf of the infant S. P. W. Douglass, against the tenant of the heirs, to recover about sixty or sixty-two acres of the intestate's lands, known as the east part of Lot No. 120; it being claimed that William S. Douglass died seised of that parcel, and that it descended to his son, and never belonged to the intestate. The cause was tried, and a verdict found for the defendant, on which judgment was entered on the 5th of September, 1814. Prior to this, and on the 8th of November, 1813, the intestate's widow petitioned the surrogate of the county of Rensselaer, to have her dower in the three hundred and eighty acres admeasured; an order was made for the citation of the heirs, and a subsequent order appointing three admeasurers. In the book of minutes of the surrogate, there was entered what purported to be the report of the admeasurers, signed by one of them only. And no other proceedings on the subject, were, on diligent search, to be found in the surrogate's office. It was proved that after 1814, and many years ago, the records and papers of that office, were kept in a most loose, careless and disorderly manner, so that the most valuable documents might have been abstracted from the files, and that many were probably lost through sheer neglect. It appeared by the parol evidence in the cause, that the admeasurers proceeded to set off the widow's dower, and in so doing, made a separate admeasurement of her dower in the sixty or sixty-two acres claimed by S. P. W. Douglass. They set off to her in that tract, eighteen 66-100ths acres, and in the remaining premises of the intestate, they set off to her about eighty acres, for her dower therein. The widow immediately took possession of the lands assigned to her for dower, and continued in possession till the hearing of this cause.

Before the admeasurement took place, and on the 2d of February, 1814, A. L. Viele presented his petition to the Rensselaer Common Pleas, for the partition of the lands of the intestate, omitting the disputed sixty-two acres. In this proceeding, the complainant and S. P. W. Douglass were made parties, and being infants, were represented by their guardians ad litem. The same persons who were admeasurers of the dower, were

Douglass v. Viele.

appointed by the court, commissioners to make the partition. The order for partition, directed them to divide the whole premises described in the petition, one-third to each of the infants, and one-third to Viele and wife. They made their report on the 4th of March, 1814, which was confirmed, and judgment was perfected thereon, March 16th, 1814. By their report, they allotted in severalty, by metes and bounds, eighty-five and one-half acres to Viele and wife, one hundred and one and one-half acres to the defendant S. P. W. Douglass, and forty-five and one-half acres to the complainant; and they made no division of the residue which was set off to the widow for dower in the proceeding in the surrogate's court, nor any allusion whatever to that residue, otherwise than by bounding certain parcels by it in the description of the allotments. In their allotments, they gave to the complainant, three separate parcels, all adjoining the widow's dower, and so situated as to be occupied with it as a farm, and they gave him a part of the dwelling house, the residue of which was admeasured to his mother as dower.

A map was introduced in evidence, which was made by one of the commissioners for the purpose and was used on making the partition, which illustrated the several allotments. The same map was used on admeasuring the dower, and exhibited that admeasurement. It was proved abundantly, that the admeasurement of dower and the partition, were made at the same time and in reference to each other. And that the commissioners in their actual allotment and division, had set apart to the complainant the forty-five and one-half acres, and also the eighty acres allotted to his mother for dower, subject to such dower; as being equal to the allotment of one hundred and one and onehalf acres to S. P. W. Douglass, and to that of eighty-five and one-half acres to Viele and wife, both of which allotments were exonerated from dower. And that this was done for the reasons, that Viele and wife wanted to sell their share, and to have it free from dower; there was no relationship between the widow and S. P. W. Douglass, which made it desirable or convenient to have the latter's interest connected with or subjected to her's; and the long minority then in prospect for the complainant, would VOL. III.

56

Douglass v. Viele.

obviously lead to his residing with the widow for many years, and their identity of feeling, would render his share, if in part subject to her dower, less inconvenient than such an allotment would be to either of the other parties.

On the 1st of November, 1814, Viele and wife sold and conveyed to R. & E. Geer, the eighty-five and one-half acres allotted to them in the partition.

After the termination of S. P. W. Douglass's ejectment, and in the year 1815, the same commissioners proceeded, as if under an order of the court, to make a partition of the parcel of sixtytwo acres. They allotted to Viele and wife twenty acres, to S. P. W. Douglass twenty acres, and to the complainant three and one-half acres, leaving as before the widow's dower, (eighteen 66-100ths acres,) in this parcel, unnoticed. It was intended by them as before, that the complainant should have the remainder in the eighteen 66-100ths acres after his mother's death, together with the three and one-half acres, to make him equal with each of the other heirs.

It was proved that on both these partitions, it was expressly agreed, by and between Viele and wife, and the guardians ad litem, of the infants, Samuel and Stephen P. W. Douglass, acting in their behalf, that those small allotments should be made to the complainant, so that the other two heirs might have their entire interest in the lands set off to them, free and discharged from dower; and that the complainant should have the whole of the lands assigned for dower, after the death of his mother. It was also proved that the allotments made to Viele and wife and to S. P. W. Douglass, in the partitions respectively, were each worth full as much as those made to the complainant, including with the latter the value of the lands assigned for dower, subject to the widow's life estate.

There was no record in the court of common pleas, nor any proceeding, relative to the partition of the parcel of 62 acres in 1815. It was however acted upon by the parties. On the 25th of December, 1815, Viele and wife conveyed to the complainant and his mother, their share of the 62 acre parcel. And on the 29th of August, 1828, S. P. W. Douglass conveyed to the complainant, all that share of his grandfather's lands, which on the par