Longley v. Longley

• Court: Maine Supreme Court
• Writing for the Court: HASKELL, J.
• Citation: Longley v. Longley, 92 Me. 395, 42 A. 798 (Me. 1899)
• Decision Date: 11 January 1899
• Parties: LONGLEY v. LONGLEY.

42 A. 798

92 Me. 395

LONGLEY

v. LONGLEY.

Supreme Judicial Court of Maine.

Jan. 11, 1899.

(Official.)

Exceptions from supreme judicial court, Androscoggin county.

Petition by Emily M. Longley against Josiah B. Longley for partition. Judgment for plaintiff. Defendant excepts. Exceptions overruled.

By agreement of parties the case was submitted to the presiding justice, with the right to except.

The petitioner is the widow of Josiah P. Longley, who died testate October 24, 1897, seised of the premises described in the petition. By his last will and testament said Josiah P. Longley devised said premises to the respondent, Josiah B. Longley. The petitioner seasonably waived the provisions of the will.

By her petition the petitioner prayed to have set out to her in severalty her one-third of said real estate to which she claims title as widow of said Josiah P. Longley, deceased.

The respondent's counsel contended that partition of said premises could not be made, and the petitioner's undivided portion thereof could not be set off to her in severalty, in this suit, but that her share in said premises could only be set out to her in severalty by the probate court, under the provision of Rev. St. c. 65. The defendant also contended that the law giving to the widow one-third of the real estate of which her husband died seised, free from the payment of debts, is unconstitutional; it appearing that the estate of Josiah P. Longley was largely involved.

The presiding justice ruled, as matter of law, that the law is constitutional, and that the petitioner is entitled to partition in this action, and adjudged that the petitioner have judgment for partition.

To this ruling and adjudication the defendant excepted.

Argued before PETERS, C. J., and EMERY, HASKELL, WHITEHOUSE, STROUT, and SAVAGE, JJ.

W. H. Newell and W. B. Skelton, for plaintiff.

D. J. McGillicuddy and F. A. Morey, for defendant.

HASKELL, J. Petition for partition by the widow of Josiah P. Longley, who died the 24th October, 1807, seised of the premises of which partition is sought.

1. The jurisdiction of this court is denied. Partition of lands held in common may be had either at common law or under the statute (Rev. St. c. 88). Act 1897, c. 196, gives a widow, free from the payment of her husband's debts, one-third of the real estate of which he was seised during coverture, in fee. The petitioner, therefore, by the death of her husband became seised in fee of one-third, at least, of his lands, as tenant in common with others. She had a right of entry therein, and asks to have her one-third set out to her in severalty. We see no legal objection to the prayer of her petition. She is the owner of one-third of the common lands. No matter how she may have acquired her title. She has it, and may hold and enforce it just the same as any other tenant in common may do.

Sears v. Sears, 121 Mass. 267, seems directly in point. There, a widow took a moiety of certain land for life, in lieu of dower; and the court held that she might have partition of the same in the supreme judicial court, notwithstanding she had a like remedy in the probate court, that the remedies were concurrent, and that she...