"(1) William Hyde, Anne Anderton, and Mary Anderton, of Pawtucket, in said county, respectfully represent that they, together with John Hyde, Oswald Hyde, Alice Pearson, and Elizabeth Elliott, also all of said Pawtucket, are the children and sole heirs at law of John Hyde, deceased, late of said Pawtucket, intestate, and that Lucy A. Hyde, of said Pawtucket, is the widow of said John Hyde.
"(2) Your petitioners further represent that said John Hyde, the father of the parties hereto and husband of said widow, deceased at said Pawtucket, intestate, on the——day of——, A. D. 1903, leaving a large amount of real estate in said Pawtucket, to which the petitioners and the other children herein named are the sole heirs, and in which said Lucy A. Hyde, widow, was entitled to dower.
"(3) Tour petitioners not being able to have the said other children of said John Hyde to agree upon a partition of said real estate, filed their bill for partition in our superior court on the 28th day of March, A. D. 1906, entitled 'William Hyde v. John Hyde et al.,' No. 944, in due form, and a subpoena was duly issued to said John Hyde, Oswald Hyde, Alice Pearson, and Elizabeth Elliott, and to said Lucy Hyde, widow, as respondents. And Louis Lescault, mortgagee of the undivided interest of said Oswald Hyde, was afterwards duly made a party respondent to said bill for partition.
"(4) And your petitioners further show that on the 9th day of June, A. D. 1906, by written consent of all the parties plaintiff and defendant to said bill for partition, a decree was entered in said superior court by which it was decreed that the widow's dower in said land was reduced to an annuity in cash, payable quarterly, which said decree was consented to by said widow's solicitor. Said decree assigning dower contained a further provision that the said heirs should give a bond to secure said annuity, and that said bond should be given before partition should be made of said real estate. But no time was fixed within which said bond should be given.
"(5) After the entry of said decree, said John Hyde, Alice Pearson, Oswald Hyde, and Elizabeth Elliott refused to give said bond, and it being agreed that the deposit of money to create and maintain a fund out of which said widow's annuity should be paid was a more acceptable and beneficial method of fixlag said annuity, all of the parties to said bill, including said widow, appeared personally or by counsel before said superior court, Mr. Justice Stearns presiding, on the 30th day of June, A. D. 1906, and a further decree was entered in said cause by agreement in open court, fixing the time in which said bond should be filed, or in the alternative permitting said heirs to deposit a certain sum towards and constituting a fund out of which said annuity should be paid.
"(6) On the same day, to wit, June 30, A. D. 1906, after said decree fixing said time had been entered, said heirs by their counsel consented to the entry of a decree for partition, in which said decree the former decree fixing said annuity fund was confirmed, and in which the title of said heirs was declared to said real estate, and each of said heirs selected a commissioner to partition said real estate, which said commissioners were named in said decree. Said decree after directing said commission to act further ordered said commission to make report of its doings to said superior court, there to await further proceedings.
"(7) Said commission duly organized and notified all parties interested, held many hearings, and prepared plats of said real estate, which real estate consists of over 100 acres, and a great amount of costs and expense have accrued.
"(8) Said John Hyde, Alice Pearson, Oswald Hyde, and Elizabeth Elliott still refused to give said bond or to deposit money to constitute said fund for said annuity, and, July 10, A. D. 1906, these petitioners, who have always been ready either to give said bond or to deposit cash for said fund, prayed said superior court to declare said John Hyde, Alice Pearson, Oswald Hyde, and Elizabeth Elliott to be in contempt for refusing to comply with said decree. Said motion was heard before Mr. Justice Baker of said superior court in chambers on the —— day of Au gust, A. D. 1906, and was denied on the ground that the petitioners had no right to ask for said finding, as the widow was the party alone interested. On the —— day of September, A. D. 1906, said John Hyde, Alice Pearson, Oswald Hyde, and Elizabeth Elliott petitioned said court to have said decree fixing dower amended, but said petition was dismissed, and on the —— day of October, A. D. 1906, said Lucy A. Hyde, widow, petitioned said court for a writ of sequestration because said John Hyde, Alice Pearson, Oswald Hyde, and Elizabeth Elliott had not complied with said decree fixing the dower, but said petition was denied before Mr. Justice Brown on the ground that said parties had not yet been adjudged to be in contempt.
"(9) And now your petitioners show that, on the 10th day of November, A. D. 1906, said Lucy A. Hyde, widow, presented her petition to said superior court asking to have set aside the two decrees entered by consent on the said 30th day of June, A. D. 1906, to wit: The decree fixing the said annuity, and the
time in which the fund was to be contributed; and also the decree appointing commissioners of partition, and declaring the interests of the parties in said real estate. Said petition of said widow was heard on said day before Mr. Justice Brown in chambers and was granted, and a decree setting both of said decrees of June 30, A. D. 1906, was ordered to be entered against the protests of your petitioners, William Hyde, Anne Anderton, and Mary Anderton, who then and there protested that said decrees were consent decrees, and that said court did not have power to set aside the same.
"Wherefore your petitioners represent and show that said superior court had no jurisdiction to set aside said decrees, or of the petition to set aside the same, and its acts in setting aside said decrees, and the records thereof, are erroneous and illegal in the several particulars, and for the several reasons which are recited and annexed to this petition, and made a part hereof, upon which your petitioners will rely for its support. Your petitioners therefore pray that this court will issue its writ of certiorari ordering the said superior court to certify its records relating to said decrees setting aside said decrees of June 30, A. D. 1906, that they may be presented to this court, to the end that the same, or so much thereof as may be illegal, may be quashed."
"Causes of Error.
"(1) It appears of record that the decree entered June 9, A. D. 1906, by which the widow's dower was reduced to an annuity, was a decree entered by the consent of all the parties, and such a decree cannot be set aside without consent of all the parties. The provision in said decree that the parties (heirs) should give bond before partition is made is simply a method by which the annuity is to be secured, and as it is mandatory, it can be enforced by proceedings in contempt.
"(2) The decree called 'Decree Fixing Time' for giving bond does not on its face show that it was entered by consent, although all of the parties in open court agreed to it, because it substituted the raising of a fund as an alternative to giving the bond mentioned in the decree of June 9th, aforesaid. If the court had jurisdiction to set aside said decree fixing time, the decree of June 9th still remained in force as a consent decree.
"(3) The second decree entered June 30, A. D. 1906, after the decree fixing time for giving bond, was signed by counsel for all of the heirs, and was a consent decree, although it was not signed by counsel for the widow. The dower rights of the widow had already been provided for in the decree of June 9th. This was a consent decree by which the rights of the heirs were determined, and commissioners were appointed. These commissioners were selected by the parties, and have completed their work at great expense, and are now preparing their report as required by the decree appointing them, to await the further action of the court.
"The superior court had no jurisdiction to alter or set aside this decree without the consent of the parties."
