Reynolds v. Reynolds

No proceedings in this cause can be founded upon the report of the commissioners appointed in the original suit, for several reasons. The report was made during an abatement of the suit, and before the rights of the present parties had been ascertained. Besides, it is not correct practice to direct a sale, upon a report of the commission*163®?s, after it has been ascertained upon a reference, and the report of a master, that an actual partition can be made; and where the commissioners have been appointed to make such partition in conformity to the decision of the master. If the situation of the property, or the rights of the parties therein, have materially changed subsequent to the report of the master, so that an actual partition thereof cannot be made, there should be a special application to the court for a new reference to a master to ascertain and report whether there can be a division of the property, as it now is, among the several parties, according to their rights as they exist at the time of such new reference; and for such further proceedings as may be necessary, in conformity to the provisions of the 178th rule of this court, if the master decides that a sale of the premises or any part thereof is necessary.

In this case, the rights of all the surviving parties have materially changed by the death of the original complainant; and several new parties, who are now interested in the property, are brought before the court by this bill of revivor and supplement, some of whom are infants. It is necessary, therefore, that the usual reference should be made, in conformity to the 177th rule, to take proof of the complainants’ title and interest in the= premises, and of the several matters set forth" in the bill of revivor and supplement; and to ascertain and report as to the rights and interests of the present parties in the premises; and whether the premises or any part thereof are so circumstanced, in reference to the rights of the present parties therein, that a partition thereof cannot now be made. And if a sale is necessary, the master must report as to specific liens, previous to the reference as to general liens. The latter reference, however, may be obtained by an order of course under the 178th rule, upon the confirmation of the first report.

It may be proper here to remark, that the rights of the infant children, of the two original defendants who are now dead, are not correctly stated in the bill. The whole of the original shares of the property, as derived by them from their respective fathers, is not liable to their mothers’ claim of dower. Their grand-mother was seised of one-third of each *164of those original shares, as tenant in dower, at' the time of the death of their respective fathers. The fathers, therefore,, were never seised of those thirds, so as to entitle their widows to dower therein. (Dunham v. Osborn, 1 Paige’s Rep. 634.) The decree of this court, directing the complainants’ dower to be set off to her,, must be considered as an actual assignment in equity, so as to divest the seisin of her sons pro tan-to, from the time of such decree. The master must report the rights of the parties accordingly.

The report of the commissioners must be set aside as irregular. And an order must be entered directing the suit to stand revived, and also directing the usual reference, as abovsstated, to take proof of the complainants’ title, &c„