Osgood, Pet'R v. Taggard

Petition of Lemuel H. Osgood and Leonard Osgood, for partition. It appeared that since the entry of the petition Lemuel H. Osgood had deceased.

By section 12, chapter 206, Revised Statutes, no partition is to be avoided by the death of either party, after the entry of the petition, but the share of each party named in the petition shall be set off in severalty, and be subject to all legal claims thereon as if the claimant had been a party. The provision that the partition shall not be avoided, &e., shows that it may proceed, notwithstanding the death, if it occur at any stage after the entry.

If a petitionee had died, unless his heirs come in voluntarily, it would be necessary to order a notice to them. The fourth section of the statute requires all persons interested to be notified; and by the seventh section, if any petitionee is an infant, &c., the court shall not cause partition to be made until an agent or guardian is appointed.

On the death of a petitioner, his heirs, if competent to act, may come in and become parties. If they do not choose to come in as petitioners, they cannot be regarded as such from the fact that their ancestor petitioned. But they ares interested, and should have notice. If they do not come in as petitioners they must be regarded a petitionees; and it may be the duty of the court to appoint guardians and agents, if it be shown that they are incapacitated.

There must be notice in this case to the heirs of Lemuel II. Osgood of the pendency of this petition, and the case proceed accordingly.