Richards v. Richards

Massachusetts Supreme Judicial Court

Richards v. Richards

136 Mass. 126, 1883 Mass. LEXIS 182

CourtMassachusetts Supreme Judicial Court

DecidedNovember 30, 1883

StatusPublished

Cited by3 cases

This text of 136 Mass. 126 (Richards v. Richards) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Richards v. Richards, 136 Mass. 126, 1883 Mass. LEXIS 182 (Mass. 1883).

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Opinion

Devens, J.

The petition for partition of real estate is a strictly statutory proceeding, and the right of the administrator, if it exist at all, to intervene, must be found in, or necessarily result from, the provisions of the statute. Judgment having been rendered upon the report of the commissioners, that their report be accepted and “partition be made firm and effectual [127]*127forever,” it was further ordered that the case be “ continued nisi upon the question of costs.” Before any adjudication upon this question, the petitioner died, and his administrators have been admitted by the court to prosecute the case. As under the St. of 1877, c. 106, (Pub. Sts. c. 178, § 29,) the costs to a certain extent are within the discretion of the court, and to be paid iu such manner as it shall direct, it is contended on behalf of the administrators that they were rightfully thus admitted, and may now press to adjudication, and have execution for the amount so adjudicated, if anything, against the respondent. But the right of an administrator to come in and prosecute or defend a suit depends solely upon the statute. Fales v. Stone, 9 Met. 316. There are no provisions by which administrators can be made parties to petitions for partition upon the death of their intestate. Pub. Sts. c. 165, §§ 20-22.

Under the Rev. Sts. c. 93, §§ 14-18, which gave authority only for the “ heir of the deceased party ” to appear and prosecute, it was held that the devisee could not be permitted to appear. Brown v. Wells, 12 Met. 501. Drake v. Curtis, 1 Cush. 395. It would certainly be a far greater extension, by construction, of the statute, which now permits heirs and devisees before final judgment to appear and prosecute such a petition, to hold that an administrator may do so, if he seeks only to recover costs which it is within _ the discretion of the court to award. If the effect of holding that the administrators are not entitled to appear is to prevent an appeal to the discretion within which, under the St. of 1877, c. 106, it may award costs to the petitioner in cases where the petitioner has deceased before this inquiry has been adjudicated, it is by reason of an omission in the statute which we cannot supply. As we are of opinion that the administrators were improvidently admitted to prosecute this case, it was correctly ruled that, in this position of the case, costs could not be awarded against the respondent; and it is unnecessary to consider other questions raised and discussed in the argument.

Exceptions overruled.

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Devens, J.

The petition for partition of real estate is a strictly statutory proceeding, and the right of the administrator, if it exist at all, to intervene, must be found in, or necessarily result from, the provisions of the statute. Judgment having been rendered upon the report of the commissioners, that their report be accepted and “partition be made firm and effectual [127]*127forever,” it was further ordered that the case be “ continued nisi upon the question of costs.” Before any adjudication upon this question, the petitioner died, and his administrators have been admitted by the court to prosecute the case. As under the St. of 1877, c. 106, (Pub. Sts. c. 178, § 29,) the costs to a certain extent are within the discretion of the court, and to be paid iu such manner as it shall direct, it is contended on behalf of the administrators that they were rightfully thus admitted, and may now press to adjudication, and have execution for the amount so adjudicated, if anything, against the respondent. But the right of an administrator to come in and prosecute or defend a suit depends solely upon the statute. Fales v. Stone, 9 Met. 316. There are no provisions by which administrators can be made parties to petitions for partition upon the death of their intestate. Pub. Sts. c. 165, §§ 20-22.

Under the Rev. Sts. c. 93, §§ 14-18, which gave authority only for the “ heir of the deceased party ” to appear and prosecute, it was held that the devisee could not be permitted to appear. Brown v. Wells, 12 Met. 501. Drake v. Curtis, 1 Cush. 395. It would certainly be a far greater extension, by construction, of the statute, which now permits heirs and devisees before final judgment to appear and prosecute such a petition, to hold that an administrator may do so, if he seeks only to recover costs which it is within _ the discretion of the court to award. If the effect of holding that the administrators are not entitled to appear is to prevent an appeal to the discretion within which, under the St. of 1877, c. 106, it may award costs to the petitioner in cases where the petitioner has deceased before this inquiry has been adjudicated, it is by reason of an omission in the statute which we cannot supply. As we are of opinion that the administrators were improvidently admitted to prosecute this case, it was correctly ruled that, in this position of the case, costs could not be awarded against the respondent; and it is unnecessary to consider other questions raised and discussed in the argument.

Exceptions overruled.

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Bluebook (online)

136 Mass. 126, 1883 Mass. LEXIS 182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richards-v-richards-mass-1883.

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