Thomas v. Smith
Massachusetts Supreme Judicial Court
The petition was presented at the September term, at Alfred, A. D 1803, and alleged that the petitioner was seised in fee of five undivided eighth parts of a parcel of land described in the petition ; and that Benjamin Staples and Daniel Smith were seised of the other three eighth parts thereof; and prayed that the petitioner’s purparty might be divided and set off" to him, to hold in severalty.
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The petition was presented at the September term, at Alfred, A. D 1803, and alleged that the petitioner was seised in fee of five undivided eighth parts of a parcel of land described in the petition ; and that Benjamin Staples and Daniel Smith were seised of the other three eighth parts thereof; and prayed that the petitioner’s purparty might be divided and set off" to him, to hold in severalty. At April term, 1806, a plea in bar was filed by the said Daniel Smith, and by Joseph Staples and others, calling themselves “ heirs at law to the said Benjamin Staples, deceased, who died since said…
1Opinion of the Court
By the Court.
Executors and administrators are authorized by statute to come in and prosecute or defend actions which survive the death of the party ; because, acting era autre droit, they maintain the rights of their testator or intestate. But no statute authorizes heirs to prosecute or defend, in a writ, or on a petition for partition, the suit commenced by or against their ancestor. When the ancestor dies seised, and on his death the heir enters, he becomes seised in his own demesne, and does not claim to hold the land in the right of anot ter.
In this petition, the petitioner claims to hold…
2Cases cited1 opinion
- Mitchell v. StarbuckMassachusetts Supreme Judicial Court · 1813
3Cited by2 opinions
- Mitchell v. StarbuckMassachusetts Supreme Judicial Court · 1813
- Webbers' Executors v. UnderhillNew York Supreme Court · 1838