The Assistant Vice-Chancellob.
There is no doubt but that William S: Douglass was of age xvhen he conveyed the east part of lot No. 120, to his father in 1804. The defendant himself recognized the title of Samuel Douglass the elder in this tract, by conveying it in 1828, as allotted to him in the partition of the intestate’s lands. It is to be assumed therefore, that when Samuel Douglass died in 1811, he was seised of the premises described in the bill, and containing about 380 acres.
Nor is there any doubt, but that the dower of his widow was admeasured and set off to her al the close of the year 1813. The documentary evidence of this is wanting, in consequence of the [444]*444shameful manner in which the records were kept in former times in the surrogate’s court in the county of Rensselaer. But the widow has been in possession under that admeasurement more than thirty years, and all the parties in interest have acquiesced in it in such a manner, that they are precluded from questioning it at this day. It appears that the dower was set off in the whole farm, in three distinct parcels. The dower in the east part of lot No. 120, was in one of these parcels, separate from the rest. It also appears that the three admeasurers of dower were the same persons who were the commissioners in partition, and the proof is distinct, that they prepared for and arranged the first partition at the same time that they admeasured the dower, and in connection with it, although the legal proceedings in the partition were not actually commenced.
The record of the partition of all the farm, except the east part of lot 120, is produced from the Rensselaer common pleas. The petition by A. L. Yiele, describes the farm, omitting the tract last mentioned. This was caused by the pending ejectment suit for that tract, which had been brought in the name of the defendant Douglass. The allotting a part of that for dower, could injure no one; but embracing it in a partition with other lands, might lead to injustice, if the title proved defective.
The court proceeded to adjudge, (as shown by the record,) that the parties were respectively entitled, each to an undivided third of the lands described in the petition, subject to the right of dower of the widow, and directed a partition to be made accordingly, of the premises described in the petition, and appointed commissioners, for that purpose. The report of the commissioners is then introduced and recited. It sets out with a statement that they have divided the premises, whereof partition is directed, according to the rights of the parties, and have allotted to each of them the parcels described. And the judgment of the court is then entered, that such partition of the said premises be valid and effectual in the law.
The record discloses the singular fact, that in the allotments therein made by the commissioners, there is an entire omission of eighty acres of the premises described in the petition ; and it appears that the omitted eighty acres, were set apart [445]*445and admeasured to the widow for dower in the other proceeding. And neither of the allotments made in the partition, are made subject to dower. The widow’s dower is butted upon,-in the description of one of the allotments, but is not otherwise referred to. By the partition, eighty-five 56-100ths acres were allotted to Yiele and his wife, for their third part; one hundred and one and one half acres to the defendant Douglass, and forty-five 53-100tbs acres to the complainant. The two latter were infants, and were both represented in the partition suit, by their guardian’s ad litem.
It is satisfactorily proved, that the lands allotted to Yiele, were worth as much by the acre, as those allotted to the complainant ; and the part set off to the defendant Douglass, was worth nearly as much by the acre, and fully equal in aggregate value to Viele’s. Each of the latter allotments was made in two parcels. The complainant’s was made in three parts, and all adjoining the widow’s dower as admeasured, and so situated, as to be occupied with the dower. Indeed, one part of his allotment zig zags around a portion of the dower in such a narrow belt, that, judging from the map, it could not be used except in connection with the dower land. A part of a dwelling house is given to the complainant, the residue of which is allotted to the widow for dower.
The testimony in the cause proves clearly, how this strange partition came to be made. The complainant was the infant son of the widow, while the defendant Douglass was the grandson of the intestate, descended from a former wife, and Mrs. Yiele was a daughter of the first wife. It was morally certain that the widow and her son would reside together for many years, and their occupancy would be joint. Yiele and his wife desired to sell their portion of the farm, and to that end, wanted an allotment free and clear of the dower of the widow. And it was agreed by all the parties, the guardians acting for the infants, that the partition should be so made, that the whole interest of the Yiele’s and the grandson, should be allotted to them in severalty freed from the dower, and that the complainant should have in severalty the lands allotted for dower, subject to his mother’s life estate, and so much more land as would make him equal to his two co-heirs.
[446]*446The partition was made on this footing, but unfortunately was not so reported to the court, and was not embraced in the judgment rendered in the suit.
After the termination of the suit for the east part of lot No. 120, the same commissioners made a partition of that tract, under the same agreement, and in the same manner, as the other lands. The tract contained about sixty-two acres. Of this, eighteen 66-100 acres had been set apart for dower, in the proceeding for that purpose. The commissioners then allotted to the Yiele’s about twenty acres, to the defendant Douglass about twenty acres, and to the complainant about three and one half acres, adjoining the portion set off to his mother for dower.
There is no record evidence to be found of the partition of the sixty-two acres. But it is referred to and adopted, in the deed from Yiele and wife on the 25th December, 1815, and in effect, by the defendant Douglass in his mortgage in 1827, and his deed in 1828.
The widow in 1814, was thirty-six years of age. Estimating the value of her life estate in the ninety-eight 66-100 acres assigned to her for dower, it is demonstrable that conceding to the complainant the remainder in fee in severalty in that portion, together with the allotments made to him in the two partitions; he did not receive in the division of his father’s estate, as much as either of the other two heirs.
To illustrate this, I will assume that the two hundred and thirty-two 59-100ths acres, divided to the heirs in the first partition, were worth double the eighty acres set apart for dower, in the same portion of the farm; and will estimate the latter at $28, per acre, and the former at $20, which will be near enough for this purpose. The widow’s life estate in the eighty acres, was worth on the principle of life annuities, using the Northampton tables and omitting fractions, the sum of $1497. The remainder belonging to the complainant in the eighty acres, would therefore be $743. His forty-five 53-100 acres in fee, at $20, would amount to $912, making his whole share of the laud, including the dower, to be $1655.
The eighty-five 56-100 acres allotted to the Yiele’s, at the same, valuation, was worth $1711.
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The Assistant Vice-Chancellob.
There is no doubt but that William S: Douglass was of age xvhen he conveyed the east part of lot No. 120, to his father in 1804. The defendant himself recognized the title of Samuel Douglass the elder in this tract, by conveying it in 1828, as allotted to him in the partition of the intestate’s lands. It is to be assumed therefore, that when Samuel Douglass died in 1811, he was seised of the premises described in the bill, and containing about 380 acres.
Nor is there any doubt, but that the dower of his widow was admeasured and set off to her al the close of the year 1813. The documentary evidence of this is wanting, in consequence of the [444]*444shameful manner in which the records were kept in former times in the surrogate’s court in the county of Rensselaer. But the widow has been in possession under that admeasurement more than thirty years, and all the parties in interest have acquiesced in it in such a manner, that they are precluded from questioning it at this day. It appears that the dower was set off in the whole farm, in three distinct parcels. The dower in the east part of lot No. 120, was in one of these parcels, separate from the rest. It also appears that the three admeasurers of dower were the same persons who were the commissioners in partition, and the proof is distinct, that they prepared for and arranged the first partition at the same time that they admeasured the dower, and in connection with it, although the legal proceedings in the partition were not actually commenced.
The record of the partition of all the farm, except the east part of lot 120, is produced from the Rensselaer common pleas. The petition by A. L. Yiele, describes the farm, omitting the tract last mentioned. This was caused by the pending ejectment suit for that tract, which had been brought in the name of the defendant Douglass. The allotting a part of that for dower, could injure no one; but embracing it in a partition with other lands, might lead to injustice, if the title proved defective.
The court proceeded to adjudge, (as shown by the record,) that the parties were respectively entitled, each to an undivided third of the lands described in the petition, subject to the right of dower of the widow, and directed a partition to be made accordingly, of the premises described in the petition, and appointed commissioners, for that purpose. The report of the commissioners is then introduced and recited. It sets out with a statement that they have divided the premises, whereof partition is directed, according to the rights of the parties, and have allotted to each of them the parcels described. And the judgment of the court is then entered, that such partition of the said premises be valid and effectual in the law.
The record discloses the singular fact, that in the allotments therein made by the commissioners, there is an entire omission of eighty acres of the premises described in the petition ; and it appears that the omitted eighty acres, were set apart [445]*445and admeasured to the widow for dower in the other proceeding. And neither of the allotments made in the partition, are made subject to dower. The widow’s dower is butted upon,-in the description of one of the allotments, but is not otherwise referred to. By the partition, eighty-five 56-100ths acres were allotted to Yiele and his wife, for their third part; one hundred and one and one half acres to the defendant Douglass, and forty-five 53-100tbs acres to the complainant. The two latter were infants, and were both represented in the partition suit, by their guardian’s ad litem.
It is satisfactorily proved, that the lands allotted to Yiele, were worth as much by the acre, as those allotted to the complainant ; and the part set off to the defendant Douglass, was worth nearly as much by the acre, and fully equal in aggregate value to Viele’s. Each of the latter allotments was made in two parcels. The complainant’s was made in three parts, and all adjoining the widow’s dower as admeasured, and so situated, as to be occupied with the dower. Indeed, one part of his allotment zig zags around a portion of the dower in such a narrow belt, that, judging from the map, it could not be used except in connection with the dower land. A part of a dwelling house is given to the complainant, the residue of which is allotted to the widow for dower.
The testimony in the cause proves clearly, how this strange partition came to be made. The complainant was the infant son of the widow, while the defendant Douglass was the grandson of the intestate, descended from a former wife, and Mrs. Yiele was a daughter of the first wife. It was morally certain that the widow and her son would reside together for many years, and their occupancy would be joint. Yiele and his wife desired to sell their portion of the farm, and to that end, wanted an allotment free and clear of the dower of the widow. And it was agreed by all the parties, the guardians acting for the infants, that the partition should be so made, that the whole interest of the Yiele’s and the grandson, should be allotted to them in severalty freed from the dower, and that the complainant should have in severalty the lands allotted for dower, subject to his mother’s life estate, and so much more land as would make him equal to his two co-heirs.
[446]*446The partition was made on this footing, but unfortunately was not so reported to the court, and was not embraced in the judgment rendered in the suit.
After the termination of the suit for the east part of lot No. 120, the same commissioners made a partition of that tract, under the same agreement, and in the same manner, as the other lands. The tract contained about sixty-two acres. Of this, eighteen 66-100 acres had been set apart for dower, in the proceeding for that purpose. The commissioners then allotted to the Yiele’s about twenty acres, to the defendant Douglass about twenty acres, and to the complainant about three and one half acres, adjoining the portion set off to his mother for dower.
There is no record evidence to be found of the partition of the sixty-two acres. But it is referred to and adopted, in the deed from Yiele and wife on the 25th December, 1815, and in effect, by the defendant Douglass in his mortgage in 1827, and his deed in 1828.
The widow in 1814, was thirty-six years of age. Estimating the value of her life estate in the ninety-eight 66-100 acres assigned to her for dower, it is demonstrable that conceding to the complainant the remainder in fee in severalty in that portion, together with the allotments made to him in the two partitions; he did not receive in the division of his father’s estate, as much as either of the other two heirs.
To illustrate this, I will assume that the two hundred and thirty-two 59-100ths acres, divided to the heirs in the first partition, were worth double the eighty acres set apart for dower, in the same portion of the farm; and will estimate the latter at $28, per acre, and the former at $20, which will be near enough for this purpose. The widow’s life estate in the eighty acres, was worth on the principle of life annuities, using the Northampton tables and omitting fractions, the sum of $1497. The remainder belonging to the complainant in the eighty acres, would therefore be $743. His forty-five 53-100 acres in fee, at $20, would amount to $912, making his whole share of the laud, including the dower, to be $1655.
The eighty-five 56-100 acres allotted to the Yiele’s, at the same, valuation, was worth $1711. And the one hundred and one and [447]*447one half acres set off to the defendant Douglass, if valued at only $16, per acre, would be within a few dollars of the complainant’s share, dower and all.
It is perfectly obvious, that if these partitions are to stand as made by the commissioners, and the other heirs are to share equally with the complainant in the dower lands, after the death of the widow; most flagrant injustice will be done to the complainant.
This consequence will not, of itself, warrant the interference of the court, unless there be some proper ground for relief, founded upon legal principles. The complainant claims relief upon two grounds, viz.: the agreement at the time of the partition, and the acts of the parties ratifying and confirming it.
First. As to the agreement, it will not avail against the defendant, because he was an infant, and his guardian ad litem had no authority to contract for him. His subsequent assent to the partition as made, and his action under it, was not an adoption of the agreement; for it does not appear that he so acted, with knowledge of its existence.
Next, as to the ratification and acquiescence. The defendant found certain allotments made to him by a judgment in partition, and he was warranted in availing himself of them, to their full extent. No occasion has arisen for the distinct assertion of his claim to the third part of the land admeasured for dower.
I do not think that either his mortgage or his deed, contain ' any recognition of the parol agreement, or any waiver of his rights in the dower lands. His conversations relative to the personal estate, and his silence as to a further interest in the farm, in connection with his necessitous circumstances, furnish a strong argument in favor of the presumption that he was conscious he had no further interest in the land, in point of justice and good conscience.
There is another ground, on which I think the complainant may be relieved, without trenching upon the salutary doctrine of the law, that a judgment is conclusive between the parties to it, and cannot be modified collaterally.
The judgment in 1814, is defective on its face ; and there is no question but that the subsequent partition of the sixty-two [448]*448acres was like it in all respects. Not only the direction of the court, but the statute, imperatively required the commissioners to make partition of .the whole premises embraced in the interlocutory judgment for partition. (1 R. L. 509, s. 4.) Their report shows, that they actually allotted only two hundred and thirty-two acres out of the three hundred and twelve embraced in the petition and judgment, and they neither advert to the dower, or state that the eighty acres are reserved for a' future division.
There was a palpable miscarriage in the performance of their duty, owing doubtless to the admeasurement of dower, pari passu, which they did not consider was in another court, and could form no part of the record ; and to the parol agreement as to the share of the complainant, which they probably deemed to be valid. The omission was not brought to the notice of the court, because by the practice in the courts of law, the report of the commissioners is confirmed as of course unless it be opposed, and judgment is entered thereon, sub silentio.
I think, considering the infancy of the complainant; the obvious defect in the proceedings of the commissioners as reported to and confirmed by the court of common pleas, (they being for this purpose, officers of the court, and not mere agents of the parties;) the agreement which led to their miscarriage, and the gross inequality and injustice, which will result from giving full effect to the defective partition irrespective of that agreement; that this is one of those cases of accident, which imperatively calls for the interference of a court of equity. The difficulties have arisen from acts and omissions, which are not the result of any negligence or misconduct of the complainant, and which unless redressed, must produce events wholly unforeseen when the acts occurred, and which the actors would have most sedulously guarded against, if they had been anticipated.
Without relief here, the complainant must be subjected to an unjustifiable loss, for which he is in no wise responsible, and the other parties will derive an unconscientious advantage from the error or oversight of the commissioners.
It is in vain at this period, to refer him to the court of law. In 1815, that court might have vacated its judgment, and referred the matter back to the commissioners. But more than [449]*449thirty years have elapsed; the commissioners are dead, and a part of the lands divided have been sold and conveyed to strangers. The common pleas could not interfere. It is otherwise in this court, where the more flexible modes of proceeding, enable it to mould its relief, to suit the infinite variety of circumstances which require its interposition.
A decree can be made referring it to a master, to ascertain the relative values of the several allotments set off in these partitions, at the time they were made, and the then value of the widow’s life estate in the respective dower lands assigned to her, and the valué of the remainder therein on the principle of life annuities. And he should report what sum, if any, the complainant ought to pay to the respective defendants, to make the parties equal, on his retaining the entire remainder in the dower lands, together with the lands specifically allotted to him in the partitions.
And with these provisions, there should be a declaration that the allotments in severalty made by the commissioners, are to remain valid and effectual; the court assuming to do justice between the parties, in respect of the premises omitted in the partitions.
The lapse of time, which renders it impracticable to have the error redressed in the original suits, does not preclude the complainant from relief in this instance; because no claim has been made until recently, in hostility to the arrangement between the Yiele’s and the guardians of the infants, in 1814. Until such a claim was asserted, he had a right to suppose that the arrangement was recognized and acquiesced in by the parties.
The case against Mrs. Yiele is fully made out by the master’s report on the facts, so as to entitle the complainant to the same decree against her, as 1 have sketched against- the defendant Douglass.
I will direct the entry of a decree accordingly; reserving all other questions and directions, till the coming in of the master’s report.