Milne v. Walsh

• Citation: 285 Mass. 151,188 N.E. 624
• Parties: MILNE v. WALSH et al.
• Decision Date: 09 January 1934
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

285 Mass. 151

188 N.E. 624

MILNE

v.WALSH et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 9, 1934.

Appeal from Probate Court, Middlesex County; Beane, Judge.

Petition by James W. Milne, as commissioner to make partition of lands among tenants in common, for instructions as to disposition of a balance in his hands. From a decree ordering payment of the entire balance to Thomas W. Walsh, William J. Walsh, and another appeal.

Affirmed.

T. G. O'Connell, of Boston, for appellants, William J. Walsh and another.

C. Hamilton, of Boston, for appellant Thomas W. Walsh.

RUGG, Chief Justice.

A commissioner, appointed to make partition of lands among tenants in common, brings this petition for instructions as to the disposition of a balance in his hands. The Probate Court has jurisdiction in equity over such a petition. G. L. (Ter. Ed.) c. 241, § 25, O'Connor v. Boyden, 268 Mass. 111, 167 N. E. 268;Foster v. Stearns, 270 Mass. 336, 170 N. E. 59. The record consists of the petition, the answers of the several respondents, the decree and the appeal, together with the petition for partition and the decree thereon. There is no report of the evidence and no finding of material facts.

It appears that the petitioner was ordered to make petition by sale of the land in question and distribution of the proceeds. It is alleged in the petition that the land was duly advertised for sale at public auction to be held on October 11, 1932; that Thomas W. Walsh, one of the respondents, bid $3,400, being the highest bid, and the land was sold to him; that a deposit of $500 was required; that the said Walsh delivered an uncertified check signed by a third person for the amount of the deposit, namely $500; that the check was received by the commissioner as a deposit with the agreement among the parties that if the check was not honored another sale would be held on October 14; that the check was not honored and that a second auction was had on October 14, 1932, when the land was sold for $2,900 to the respondent Maurice F. Walsh. The respondents Maurice F. Walsh and William J. Walsh have delivered to the commissioner receipts for their shares in the net proceeds of the sale for $2,900, but they claim an interest in the difference between that sum and $3,400 bid at the first sale and contend that that difference should be taken out of the share of Thomas W. Walsh. There is for distribution in the hands of the commissioner $851.57. The respondent Thomas W....