Hurley v. Hamilton

Mitchell, J. 1 The constitution expressly limits the jurisdiction of the probate court to the estates of deceased persons and persons under guardianship. It follows that it can have no general jurisdiction in regard to the partition of real estate. The power to make partition, conferred upon that court by Gen. St. 1S78, c. 56, is only given as an incident of settling the estates of deceased persons, and as a part of the final step of administration, viz., the division of the property among the heirs or devisees after the estate has been otherwise fully administered. This chapter provides, in certain cases, for a division or partition and an assignment to each of his share in sev-eralty. In other cases the partition may be dispensed with, and the estate assigned to all in common or undivided shares. But the partition provided for is but a step towards an assignment, and it is to be done while the land is still in the possession of the executor or administrator for the purposes of administration. The statute never contemplated a proceeding in probate court for the purposes of partition after the administration is closed and the lands assigned or turned over to the heirs or devisees. When that is done, the property has passed out of court, and the probate court has no longer any jurisdiction over it. Any proceeding thereafter for partition would not be a step in the administration of the estate of a deceased person, and hence would not be within the jurisdiction of a probate court. See State v. Probate Court, 33 Minn. 94 , ( 22 N. W. Rep. 10 ;) Cox v. Ingleston, 30 Vt. 258 . Order affirmed. Berry, J., owing to illness, was absent, and took no part in the decision of this case.