Metcalfe v. Miller

• Decision Date: 25 July 1893
• Citation: 56 N.W. 16,96 Mich. 459
• Court: Michigan Supreme Court
• Parties: METCALFE v. MILLER et al.

56 N.W. 16

96 Mich. 459

METCALFE v. MILLER et al.

Supreme Court of Michigan

July 25, 1893

Appeal from circuit court, Wayne county, in chancery; George Gartner, Judge.

Action by Alexander R. Metcalfe against Sydenham Flagg Miller, Mary A. Metcalfe, and others, for the partition of certain real estate. From a decree dismissing his bill, complainant appeals. Affirmed.

John G Hawley, for appellant.

Frank P. Guise and Charles A. Kent, for appellees.

McGRATH J.

This is a bill for partition. Samuel Miller died in 1881, seised of certain real estate. He left a will, by which he devised to his "heirs at law, as the same would be distributed by the law of descent of the state of Michigan as said law now is." Decedent left a widow, but no issue. In the settlement of the estate the interest of his widow, Mary A Metcalfe, now the wife of complainant, and one of the defendants herein, was determined by the following order of the probate court: "That the use, net income, rents, and profits of the real estate or interest therein, of which the said testator died seised, except such as may be sold under the order of this court for the payment of any debts existing against said estate under the provisions of the will of testator or otherwise, and the possession of such real estate, shall be decreed to belong to and be the property of the said Mary A. Miller, for and during the period of her natural life, subject, however, to the payment of all taxes or assessments against the said property, and all necessary expenses to keep said property in repair and condition." Complainant has since purchased one seventy-second part of the reversion, and one-fifth of the life estate. Mary A. Metcalfe files an answer, admitting the matters set forth in the bill, and joining in the prayer thereof. Certain of the reversioners answered, denying complainant's right to partition. The court below dismissed the bill, and complainant appeals.

At common law, estates in remainder or reversion could not be compulsorily partitioned, nor could tenants in remainder or reversion interfere with tenants in possession. After the statutes of Henry VIII., partition was only allowed when there was an actual tenancy or holding of the parties to the writ, and when any of the parties were seised or possessed of a particular estate for life or for years the partition was necessarily temporary only, and commensurate with their estate. To make the partition absolute, another writ against the remainder-man was necessary when his estate fell into possession. Our statute relating to the partition and distribution of estates in the probate court follows the rule which succeeded the adoption of these statutes. How. St. � 5983, (being section 21, c. 226,) expressly provides that "when the terms of a widow entitled to dower or other life estate in the lands of a deceased person shall expire the reversion may be assigned to the parties entitled to the same, and partition thereof be made in the manner prescribed in this chapter in relation to other estates of deceased persons." How. St. � 7850, (being section 1, c. 270,) providing for partition in equity, is as follows: "All persons holding lands as joint tenants or tenants in common, may have partition thereof in the manner provided in this chapter." Section 7852 provides that "such suit may be maintained by any person who has an estate in possession in the lands of which partition is sought,...