The opinion of the Court was drawn up by
Parker C. J.By St. 1817, c. 190, § 24, authority is given to the judge of probate, to divide the real estate of a deceased person by the intervention of commissioners, among the heirs or devisees, pursuant to the will or to the laws regulating the descent and distribution of intestate estates.1 And he may assign the whole to one, if it cannot be divided without spoiling it.2
This statute gives no power to the judge to cause par tition of the share claimed by one heir or devisee, leaving the others tenants in common of the residue. If such a partition is wanted, application must be made to the courts of law, as heretofore provided.3
That the judge may in his discretion cause the whole to be divided among all the heirs or devisees, upon the application of one, we have no doubt.4 And we think it questionable whether any petition or written application is necessary to found his order of partition upon ; but of this we give no opinion.
*212The objection to the decree, grounded on a variance between. that and the petition, we do not think sufficient. The prayer is, that seven thirty-second parts be set off; the petitioner’s share is nine thirty-second parts ; and the judge ordered this latter proportion to be set off to the petitioner. There is no error in this, since, by the statute, the judge is authorized to divide notwithstanding a conveyance,1 *and he can no otherwise divide than pursuant to the will or the laws of descent. He cannot take into consideration the conveyance. The purchaser must come in under the devisee or heir and take such share as is set off to him, and if only a part of a share is sold, the purchaser will hold as tenant in common with the devisee or heir in that portion of the estate which is set off.
We think, however, as the land to be divided is but a small tract, the other persons interested may reasonably oppose a partition among them all, since it is pretty obvious that to cut it up into several strips would be injurious to the lots, while the setting off of one share, or such proportion as one heir or devisee may own, may not be at all injurious. As a matter of discretion, then, we think that this decree of the judge of probate ought not to be carried into execution, because he must of necessity cause a division among all the devisees,2 when two at least are opposed to the partition. The petitioner may have his share set off from the rest by petition to this Court or the Court of Common Pleas ; which will be much more convenient, because the others will be left as tenants in common. And the petitioner’s share will then be disembarrassed of that portion which Pliny Arms may claim by virtue of his conveyance.
We think therefore the decree ought to be reversed, bul without costs.
See Revised Stat. c. 103, § 50, et seq.
See Revised Stat. c. 103, § 57.
Under the Revised Statutes the probate court may permit two or more of those interested in the estate to hold their shares in common and undivided, if they consent so to hold them; c. 103, § 56.
See Revised Stat. c. 103, § 53.
Sp“ Revised Stat. c. 103, § 50.
This is not now necessary. Revised Stat. e. 103, § 56.