The opinion of the Court was drawn up by
Rice, J.
The parties claim as heirs or the representatives of heirs of the late Micajah Gleason. The estate now sought to be parted was, after the decease of said Gleason, assigned to his widow for her dower. The widow had also deceased before the proceedings were had in the Probate Court, for the division of the estate now in controversy among the heirs of Gleason. November 26, 1836, “three discreet and disinterested freeholders” were appointed as commissioners by the Judge' of Probate to divide the above estate.
On the 3d day of May, 1837, the commissioners made a report of their doings to the Probate Court, in which, after stating that, “ not finding sufficient to accommodate the whole, and division would be injurious,” they proceed to assign the principal part of the estate to be divided to Joseph Gleason, one of the respondents, and the oldest son of Micajah Gleason, and make compensation to the other heirs in money to be paid to them, at periods, then future, by the said Joseph, and then close their report in these words — “and the above described property is considered to be holden as collateral security for the payment of the above named sums severally.”
This report was accompanied by the following certificate, which is signed by all the heirs, including the petitioners and the respondent Joseph Gleason.—
“We, the undersigned, heirs to the above named estate, [271]*271hereby signify our approval of the way and manner of dividing the aforesaid property.”
The record of the Probate Court, held May 10, 1837, recites that “ the within being returned as the division of the widow’s dower within named, among the heirs of Micajah Gleason, and it appearing that the persons interested are satisfied therewith, I do therefore, decree that the same be accepted and recorded. “Nath’l Groton, Judge.”
The first question presented is whether these proceedings were legally binding upon the parties interested in the estate.
By the provisions of § 31, c. 51, of statute of 1821, Judges of Probate were authorized to cause the real estate of deceased persons to be divided among the heirs or devisees by their warrant, directed to a committee of three discreet and disinterested freeholders, who should act under oath; and, when such real estate could not be divided among all the heirs or devisees or their legal representatives, without great prejudice to, or spoiling the whole, the Judge might assign the whole to one or so many of the heirs or devisees as the same will conveniently accommodate, always having due regard to the terms of any devise there may be in the case, and also preferring males to females, and among the children of the deceased, elder to younger sons; and, if any heir or heirs, devisee or devisees to whom any real estate should be so assigned, should not accept the same, or make or secure payments to -be made as the said Judge of Probate should direct, then, and in such case, the same might be so assigned to one or more of the other heirs or devisees.
By section 33 of the same statute, it was further enacted that division of any such real estate, made as aforesaid, and accepted by said Judge of Probate, and recorded in the public office of the same county, shall be binding on all persons interested, provided, among other things, that before an order for such division should issue it should be made to appear to the said Judge of Probate that the several persons interested in such real estate, if living within the State, have had such notice of such partition as the Judge of Probate had [272]*272ordered, and had had an opportunity to make their objections to the same.
In the case under consideration, there is a want of technical accuracy, both in the report of the commissioners and also in the action of the Court of Probate thereon. The terms of the statute are not used by the former, in determining the necessity of assigning the whole estate to one of the heirs, instead of dividing it among all, nor does the Judge make a distinct and formal decree by which the estate is divided and the question of security determined. But, from' their action, sufficient does appear to show that, in the opinion of the commissioners, the contingency contemplated by the statute, to authorize them to assign the whole estate to one of the heirs, existed, and although, in determining that point, they do not use the language of the statute, yet they use language which conveys, subtantially, the same idea. It is also apparent that the Judge of Probate, by accepting the report of the commissioners and ordering the same to be recorded, deemed that action tantamount to a decree, setting out in terms the. same provisions. Whether these proceedings, thus informal or wanting in technical accuracy would, without the assent of the parties directly interested, be deemed sufficient, it is not now necessary for us to decide. But these proceedings, taken in connection with the written approval of all the heirs of the way and manner of dividing the property, and the long continued acquiescence of all parties interested therein, must be held to preclude those parties from calling in question, at this late day, the correctness of those proceedings. Newhall v. Sadler, 16 Mass., 122; Smith v. Rice, 11 Mass., 507; Rice v. Smith, 14 Mass., 431.
In the case of Thayer v. Thayer, 7 Pick., 209, cited by counsel, there does not appear to have been any security provided for the payment of the money to the other heirs by the party to whom the land was assigned. Por that reason, the division, as to those who had not been paid, was held to be void.
The division in this case, for the reasons already assigned [273]*273being deemed valid. The next question arising has reference to the security provided for the benefit of the petitioners and other heirs, and the mode by which they may avail themselves thereof.
Was the charge upon the land assigned to Joseph, for the security of the money to be paid by him to the other heirs, in the nature of a condition precedent, or a condition subsequent ?
A precedent condition is one which must take place before the estate can vest. Subsequent conditions are those which operate upon estates already vested and render them liable to be defeated. 4 Kent’s Com., 125. Whether conditions are precedent or subsequent depends on the intention of the parties and the nature of the case.
In Stark v. Smiley, 25 Maine, 201, which was a case of a will, wherein the testator devised his estate to his son, charged with the payment of legacies and other charges, and concluded in the following language; — “therefore, as soon as Thomas Smiley, &c., (the devisee,) shall have paid all the lawful demands against my estate and the aforementioned sums to my children and Ebenezer Woodman, or to their and his heirs, and otherwise fulfilled this my last will and testament, he shall, by this instrument, be entitled to all my real estate and the privileges thereto belonging, in the towns of Winslow and Clinton in the county of Kennebec, and the saw-mill in the town of Winslow, to have and to hold the aforementioned real estate to him and his heirs for their use and benefit forever.” This was held to be a condition subsequent and that the estate vested in the devisee immediately on the decease of the devisor.
In Fisk v. Chandler,
Free access — add to your briefcase to read the full text and ask questions with AI
The opinion of the Court was drawn up by
Rice, J.
The parties claim as heirs or the representatives of heirs of the late Micajah Gleason. The estate now sought to be parted was, after the decease of said Gleason, assigned to his widow for her dower. The widow had also deceased before the proceedings were had in the Probate Court, for the division of the estate now in controversy among the heirs of Gleason. November 26, 1836, “three discreet and disinterested freeholders” were appointed as commissioners by the Judge' of Probate to divide the above estate.
On the 3d day of May, 1837, the commissioners made a report of their doings to the Probate Court, in which, after stating that, “ not finding sufficient to accommodate the whole, and division would be injurious,” they proceed to assign the principal part of the estate to be divided to Joseph Gleason, one of the respondents, and the oldest son of Micajah Gleason, and make compensation to the other heirs in money to be paid to them, at periods, then future, by the said Joseph, and then close their report in these words — “and the above described property is considered to be holden as collateral security for the payment of the above named sums severally.”
This report was accompanied by the following certificate, which is signed by all the heirs, including the petitioners and the respondent Joseph Gleason.—
“We, the undersigned, heirs to the above named estate, [271]*271hereby signify our approval of the way and manner of dividing the aforesaid property.”
The record of the Probate Court, held May 10, 1837, recites that “ the within being returned as the division of the widow’s dower within named, among the heirs of Micajah Gleason, and it appearing that the persons interested are satisfied therewith, I do therefore, decree that the same be accepted and recorded. “Nath’l Groton, Judge.”
The first question presented is whether these proceedings were legally binding upon the parties interested in the estate.
By the provisions of § 31, c. 51, of statute of 1821, Judges of Probate were authorized to cause the real estate of deceased persons to be divided among the heirs or devisees by their warrant, directed to a committee of three discreet and disinterested freeholders, who should act under oath; and, when such real estate could not be divided among all the heirs or devisees or their legal representatives, without great prejudice to, or spoiling the whole, the Judge might assign the whole to one or so many of the heirs or devisees as the same will conveniently accommodate, always having due regard to the terms of any devise there may be in the case, and also preferring males to females, and among the children of the deceased, elder to younger sons; and, if any heir or heirs, devisee or devisees to whom any real estate should be so assigned, should not accept the same, or make or secure payments to -be made as the said Judge of Probate should direct, then, and in such case, the same might be so assigned to one or more of the other heirs or devisees.
By section 33 of the same statute, it was further enacted that division of any such real estate, made as aforesaid, and accepted by said Judge of Probate, and recorded in the public office of the same county, shall be binding on all persons interested, provided, among other things, that before an order for such division should issue it should be made to appear to the said Judge of Probate that the several persons interested in such real estate, if living within the State, have had such notice of such partition as the Judge of Probate had [272]*272ordered, and had had an opportunity to make their objections to the same.
In the case under consideration, there is a want of technical accuracy, both in the report of the commissioners and also in the action of the Court of Probate thereon. The terms of the statute are not used by the former, in determining the necessity of assigning the whole estate to one of the heirs, instead of dividing it among all, nor does the Judge make a distinct and formal decree by which the estate is divided and the question of security determined. But, from' their action, sufficient does appear to show that, in the opinion of the commissioners, the contingency contemplated by the statute, to authorize them to assign the whole estate to one of the heirs, existed, and although, in determining that point, they do not use the language of the statute, yet they use language which conveys, subtantially, the same idea. It is also apparent that the Judge of Probate, by accepting the report of the commissioners and ordering the same to be recorded, deemed that action tantamount to a decree, setting out in terms the. same provisions. Whether these proceedings, thus informal or wanting in technical accuracy would, without the assent of the parties directly interested, be deemed sufficient, it is not now necessary for us to decide. But these proceedings, taken in connection with the written approval of all the heirs of the way and manner of dividing the property, and the long continued acquiescence of all parties interested therein, must be held to preclude those parties from calling in question, at this late day, the correctness of those proceedings. Newhall v. Sadler, 16 Mass., 122; Smith v. Rice, 11 Mass., 507; Rice v. Smith, 14 Mass., 431.
In the case of Thayer v. Thayer, 7 Pick., 209, cited by counsel, there does not appear to have been any security provided for the payment of the money to the other heirs by the party to whom the land was assigned. Por that reason, the division, as to those who had not been paid, was held to be void.
The division in this case, for the reasons already assigned [273]*273being deemed valid. The next question arising has reference to the security provided for the benefit of the petitioners and other heirs, and the mode by which they may avail themselves thereof.
Was the charge upon the land assigned to Joseph, for the security of the money to be paid by him to the other heirs, in the nature of a condition precedent, or a condition subsequent ?
A precedent condition is one which must take place before the estate can vest. Subsequent conditions are those which operate upon estates already vested and render them liable to be defeated. 4 Kent’s Com., 125. Whether conditions are precedent or subsequent depends on the intention of the parties and the nature of the case.
In Stark v. Smiley, 25 Maine, 201, which was a case of a will, wherein the testator devised his estate to his son, charged with the payment of legacies and other charges, and concluded in the following language; — “therefore, as soon as Thomas Smiley, &c., (the devisee,) shall have paid all the lawful demands against my estate and the aforementioned sums to my children and Ebenezer Woodman, or to their and his heirs, and otherwise fulfilled this my last will and testament, he shall, by this instrument, be entitled to all my real estate and the privileges thereto belonging, in the towns of Winslow and Clinton in the county of Kennebec, and the saw-mill in the town of Winslow, to have and to hold the aforementioned real estate to him and his heirs for their use and benefit forever.” This was held to be a condition subsequent and that the estate vested in the devisee immediately on the decease of the devisor.
In Fisk v. Chandler, 30 Maine, 79, the question before the Court arose on the construction to be given to a condition in a deed, which provided for the payment of certain notes and to hold the grantor harmless from a certain mortgage. The concluding words are as follows, — “then the foregoing deed is to remain good and valid, otherwise it is to be null and void, so far as to make good any non-fulfilment of the [274]*274above conditions.” Held, that this was a condition subsequent, and that the grantor might. enter for condition broken and hold possession of the premises as a pledge or mortgage.
Considering the situation of the parties in the case at bar, the acts of the Probate Court, and the subsequent acts of the parties interested, there can be no doubt as to their intention. It was evidently their intention that Joseph should have the land, and hold the same as an estate of freehold, subject to be defeated by the non-fulfilment of the conditions attached thereto in the report of the commissioners.
The condition, like that in Fisk v. Chandler, does not provide for an absolute forfeiture of the estate by a breach thereof, but authorizes the heirs, to whom money was to be paid, to reenter and hold the land as collateral security for the money due them.
Such being the character of the act of division, and such the rights of the parties under it, the only remaining question is whether the petitioners are in a condition to maintain this process for partition.
The evidence shows that, from the time of the division in 1837 to the present time, the respondent Joseph Gleason, or those claiming under him, have been in the actual and exclusive possession of the premises. The evidence also shows that he has not, until very recently, at least, claimed to hold it as an absolute and indefeasible estate, but subject to the right of the other heirs to reenter upon the estate and hold it as security for the money due them. He has not, therefore, matured a title in himself by disseizin. The right of reentry is still open to the petitioners unless discharged by payment of the money due them from Joseph under the assignment.
By the provisions of c. 88, § 2, persons in possession or having a right of entry into real estate in fee simple for life, or a term of years, may maintain a petition for partition.
The petitioners do not sustain either relation. They are neither seized of the estate in fee simple, or for life, or for a term of years, nor have they the right of entry in such manner. They sustain rather the relation of mortgagees out of [275]*275possession, but with the right of entry to foreclose or hold possession for condition broken. Whether this right, as contended by counsel for the defendants, attaches to the whole estate, or to an undivided portion thereof, is a question not now before us for decision. The petitioners not being in a condition to maintain this process, according to the provisions of the report the petition must be dismissed.
Tenney, C. J., and Appleton, Cutting, May, and Goodenow, JJ., concurred.