Simpson v. Simpson

• Decision Date: 13 January 1886
• Citation: 59 Mich. 71,26 N.W. 285
• Court: Michigan Supreme Court
• Parties: SIMPSON v. SIMPSON.

26 N.W. 285

59 Mich. 71

SIMPSON v. SIMPSON.

Supreme Court of Michigan

January 13, 1886

Appeal from Cass.

Howell, Carr & Barnard, for complainant.

Spafford Tryon, for defendants and appellants.

SHERWOOD J.

James Simpson, late of the county of Cass, died on the sixth day of May, 1882, intestate, leaving a widow and four children, his sole heirs. His personal estate was inconsiderable, but he left real estate consisting of a valuable farm, containing 124 acres. It was his homestead where he had lived about 40 years. The widow, at the time of the death of her husband was well advanced in years, and was feeble in health, and, by the consent of all the parties, had occupied the house with her youngest daughter to the time of filing the bill of complaint in this cause. The deceased left no debts, and no administration has been had upon his estate. The complainant's bill was filed to obtain partition of the farm among the heirs of the deceased, and on the twenty-fourth day of October, 1884, the circuit judge rendered a decree for partition, and for setting apart dower to the widow, and appointed three commissioners to make the division of the property, and to make report of their doings to the court. The commissioners accepted and qualified, and entered upon the discharge of the duties of their trust on the eleventh day of November thereafter, and on January 14 1885, two of the commissioners made a report of their doings in the premises to the court, wherein they reported that they had made the required partition of the property among the heirs, and assigned dower to the widow, but that Mr. Dewey was not able to meet with them, and therefore the other two made and signed the report, and returned it to the court. The following stipulation was entered into between the parties and acted upon by the court, viz.: "It is hereby stipulated by and between the parties that a partition may be had in the premises described in the bill of complaint in this suit, as follows: The dower interest therein is to be assigned to the said defendant Nancy Simpson for and during her natural life, and the said complainant is to be allotted one-fourth interest in said promises, subject to said dower interests, and the remaining three-fourths is to be allotted to the daughters named in said bill and the pleading herein in the aggregate, subject to the said dower interest of the said Nancy Simpson; that the said partition and allotment between the complainant and the said daughters, defendants named in the pleadings, shall be divided so that their several portions and shares in the said premises shall be allotted to the respective parties, quality and quantity relatively considered, according to the respective rights of the parties. It is further stipulated that the decree made in this cause heretofore may be amended to conform to this stipulation"

Counsel for defendants filed exceptions to the report made by the two commissioners in the matter, and the exceptions to the report and motions for order of confirmation were heard together by the circuit judge. The exceptions are as follows: "First. For that the said report is only signed by two of said commissioners appointed by this court to make partition of the premises described in the pleadings, and the defendants insist that the said report must be signed by all the commissioners, and if not signed, then the report should set out at large the reason of the omission, which this report fails to do. Second. That the said commissioners, Robert Wiley, William Sears, and Levi Dewey, should have all met together, and consulted as to the performance of their duty in the matter of partition committed to them, and it ought and must appear from the said commissioners' report that the said commissioners did meet together and consulted upon the matter of partition at the time the several allotments were made and the land partitioned. Third. That the defendants insist that the said commissioners' report is contrary to law and equity, inasmuch as the report does not settle the rights of the parties to this proceeding, in this: the said commissioners, as appears by their report, have partitioned only a portion of said premises, not having allotted the interest of the defendants Sylvia Garrett, Ellen Spaulding, and Elsie Webster in said premises, to have and to be enjoyed by them in common, as provided for in the stipulation in this case. These defendants insist that this must be done before such report can be confirmed. Fourth. That the parties to this suit made a stipulation in this case, providing the manner in which such partition of the premises shall be made, and that the decree should conform thereto, and although the commissioners had this stipulation before them, yet they have not partitioned said premises in accordance with the terms thereof nor reported properly. Fifth. That the said commissioners have in their partition of said premises done great injustice to these defendants, and to each of them; that said partition and allotment is unequal and unjust, and is not in accordance with law and equity. Sixth. That the said defendants ought to have been notified of the meeting of said commissioners, whereas, in fact, the defendants, nor either of them, were notified of the meeting or meetings of said commissioners, and neither of said defendants did attend said meeting or meetings of said commissioners, nor any one in their behalf. Seventh. That said commissioners had no authority to act in the matter of partition until the decree of the court had been amended in accordance with the said stipulation. Eighth. That the said commissioners proceeded to perform the duty assigned them under the stipulation without being first sworn; for, inasmuch as new duties were assigned and imposed upon them by the terms of the stipulation, the said commissioners should have been resworn. Ninth. That the said commissioners had no authority to set off forty and 41-100 acres of said premises unto the said J. Lewis Simpson, and then assign to the defendant Nancy Simpson her dower therein. Such proceeding is both contrary to law and equity, as well as contrary to the terms of the said stipulation. In which several particulars these defendants, and each of them, object to the said report, and to the action of said commissioners, and pray the judgment of this court that the said report ought not to be confirmed, and the same should be vacated and set aside."

The circuit judge overruled the...