Cleghorn v. Benjamin

(specially concurring) — I concur in the result reached in the majority opinion but I do not feel the reversal should be based upon a waiver of the right to transfer the partition proceedings from probate to equity. This presupposes an adversary partition proceeding in the probate court that could have been transferred to equity. But the other co-tenants were not parties to the probate proceedings that resulted in the partition. I feel the record shows a voluntary partition by cotenants, which the probate court found was fair as to the ward’s estate; that partition can be made in this manner;…