The plaintiffs upon the petition of the defendants were appointed by the probate court commissioners to make partition of the real estate of which Otis Little died seized, among his devisees. In this early stage of the proceedings the court assumed jurisdiction, undoubtedly regarding it as a case in which the shares or proportions of the parties interested were not in dispute or uncertain, and issued a warrant setting forth the names- of the parties and the fractional portion to be assigned to each.
It is found that the plaintiffs as commissioners employed a surveyor whose services were necessary for the intelligent and impartial partition of the estate, and that they acted faithfully and impartially in the discharge of their duties, and made return of their doings. But their report did not follow the warrant, and made partition in a mode not authorized by and in direct violation of its requirements. The plaintiffs now seek to recover for their services and for the expenses incurred by them.
It would seem that after the warrant was issued and put into the hands of the commissioners doubts arose as to the construction of the will under which the parties interested claimed title to the premises, and that the plaintiffs, taking the advice of the counsel of the defendants, made partition as reported. Upon the presentation of the report in court for confirmation, the judge, regarding the questions raised as proper for the consideratioa
By Gen. Sts. c. 136, § 60, it is provided that no partition shall be made by the probate court when the shares are in dispute or “ appear to the judge to be uncertain ; ” and the final decree in this case was founded on this provision, as its recital shows. And though it would seem that the probate court, having once necessarily passed on the question of jurisdiction in issuing the warrant, could not at a subsequent stage of the case revise its adjudication; Gen. Sts. c. 136, § 70; yet, as no appeal was taken, the effect of the decree was to render void and useless all the proceedings to that time had upon the defendants’ petition.
By § 74 of the same chapter it is provided that in all cases of partition the court may for any sufficient reason set aside the return of the commissioners, and commit the case anew to the same or other commissioners; affording in all cases an opportunity to parties interested to obtain a correction of informalities or substantial errors in the return. If the proceedings in this case had not been abruptly terminated by the decree dismissing the whole matter, the defendants under this provision might have obtained from the plaintiffs a correction of their return, and made it useful and available; but no effort in this direction was made, and all parties seem quietly to have acquiesced in the decree.
The principal objection made by the defendants to the right of the plaintiffs to recover, and upon which they asked the instruction of the court, was, “ that by reason of the non-compliance of the commissioners with the directions of the warrant, their services turned out to be abortive and of no value to the defendants.” If the facts were as claimed by the defendants, we should hesitate to decide that the plaintiffs were entitled to no compensation for services faithfully and impartially rendered at the defendants’ request. We are referred to no decision directly or
But it is not necessary as this case presents itself to come to any such decision, for although the return of the commissioners appears to be fatally defective, yet the failure of the proceedings is attributable to the final decree dismissing the whole for want of jurisdiction, rather than to the error of the plaintiffs.
The services of the plaintiffs would have been of no value to the defendants, if there had been no error in their proceedings. The decree of the court made them useless. The facts therefore do not sustain the defendants in asking the instructions requested on this point.
The defendants further contended that the plaintiffs were not entitled to recover unless their charges and expenses had been previously allowed by the court under § 59 of the same cha pier, which provides that they shall be ascertained and allowed by the court, and paid by the parties interested in proportion to their shares or interests in the premises. But we think it plain „hat this provision does not affect the claim of commissioners upon the parties employing them for compensation. It is a provision for the benefit of petitioners who have paid for these services, and who are entitled to contribution from all the other parties in interest. The commissioners cannot be compelled to
The defendants asked the court to rule that they were liable for only two thirty-third parts of these charges and expenses. This would have been the extent of their ultimate liability if the proceedings had been carried to completion, and the other parties had contributed according to the provisions of the statute. But the fact is overlooked that this is an action of contract by the plaintiffs to recover of those by whom they were employed for services rendered at their request. Contribution from the other parties as above suggested could only be obtained by the defendants after payment and allowance by the court, and, if necessary, execution issued in their favor against those who failed to pay.
The testimony of the plaintiffs that they acted under the advice and direction of the defendants’ counsel, the defendants being present on some of the occasions when such advice and direction were given, was competent upon the question of the fidelity and impartiality of the plaintiffs’ conduct.
There was no error, therefore, in the refusal to give the instructions asked; and it follows that the instructions given which authorized the jury to find a verdict for the statute compensation for such services and the expenses incurred for survey were correct.
Exceptions overruled.