Commonwealth v. Thompson. defendant; that before her second marriage she read in a news paper of the killing of William B. Carlton in a drunken row, at Billerica in this commonwealth, and believed it to be her husband; that she had no knowledge that he was alive and had not seen or heard from him for more than eleven years; and that she told the defendant before she married him that she was a widow. It appeared however that her husband was still alive, since her second marriage. The defendant requested the court to instruct the jury that if they were satisfied that he married the woman in good faith, believing her to be a widow, and cohabited with her under such circumstances, and did not know or believe that she had a husband alive, he would not be criminally punishable for adultery, if at the time of the marriage her husband had remained absent from her for seven years together, and neither she nor the defendant knew that he had been living within that time. But the judge declined so to rule, and instructed the jury that when a wife departs from her husband and remains absent and distant from him, as in the present case, without knowledge or inquiry respecting him, no presumption of his death arises from the fact that she had not heard from him for seven years which would justify her in marrying and cohabiting with another man, and justify another man in marrying and cohabiting with her, and that the facts in this case, though they might go greatly to mitigate the offence of the defendant, did not amount to a legal justification. The jury returned a verdict of guilty, and the defendant alleged exceptions. G. F. Verry, for the defendant, cited Gen. Sts. c. 165, § 5; Commonwealth v. Thompson, 6 Allen, 591, and cases therein cited; Newman v. Jenkins, 10 Pick. 515; The King v. Twyning, 2 B. & Ald. 386. Reed, A. G., for the Commonwealth, cited, in addition to cases cited above, Commonwealth v. Mash, 7 Met. 474. DEWEY, J. As already stated, in reference to the present case when presented on a former bill of exceptions, (6 Allen, 591,) the mere fact that the defendant married Emeline B Commonwealth v. Thompson. Carlton in ignorance of the fact that she had a husband living constitutes no legal defence to this indictment. The most favorable view in which this defence could be sustained was that stated in the former opinion, " that if it appeared that the husband had absented himself from his wife, and remained absent for the space of seven years together, a man who should, under the existence of such circumstances, and not knowing her husband to have been living within that time, in good faith and in the belief that she had no husband, intermarry with her and cohabit with her as his wife, would not by such acts be criminally punishable for adultery, although it should subsequently appear that the former husband was then living." But the case stated in this bill of exceptions is wanting in one of the essential facts stated as the foundation for a right to presume the death of the husband. It is only to the person who leaves his home or place of residence and is gone more than seven years and not heard of, that this presumption is applicable. Here the wife went away, and the husband for aught that appears remained at Lawrence, or in the vicinity. The facts show affirmatively that he was residing in Dracut in this commonwealth in 1859. Dracut was the place of residence of the parties for two years succeeding their marriage, and was the only place where they lived together, except in Lawrence, which is in its vicinity. In the facts stated, we see no sufficient ground for any presumption of the death of the husband upon which the wife of Carlton or the defendant could properly have acted. The superior court very correctly marked the distinction, in the case where the wife leaves her husband and remains absent from him, in the ruling and instructions given to the jury. The fact that the misconduct of the husband authorized the wife thus to leave him and continue absent, although it might justify her against all cause of complaint by the husband, and even warrant her obtaining a legal divorce for desertion, if continued for five years, under the provisions of our statute, does not affect the legal guilt of the defendant, however much these circumstances may avail him in mitigation of his punishment. Exceptions overruled. Carpenter v. Green. AMY CARPENTER US. CHARLES GREEN. A decree of partition, in the probate court, setting off a portion of the real estate of a deceased person to his daughter, is conclusive upon her husband, when finally confirmed and established according to Gen. Sts. c. 136, if he assents thereto, and in the petition represents that she is entitled to a share of the estate in her right as an heir at law; and such partition will vest in her a valid title as against him and his heirs, although before the partition was made her title had become vested in him by mesne conveyances. WRIT OF ENTRY, wherein the demandant claimed one fourth part of a piece of land in Sturbridge as heir at law of her deceased sister, Phebe Green. At the trial in the superior court, before Wilkinson, J., it appeared that Phebe Green, who was the wife of Nathaniel Green, was one of five heirs at law of Alpheus Drury, John Drury and Polly Drury, who were her brothers and sister, and the bill of exceptions set forth that she inherited the premises from them. On the 6th of May 1862, while the estates of said Alpheus and John were in the course of settlement in the probate court, all of said heirs, and Nathaniel Green as husband of Phebe, united in a petition to the judge of probate, alleging that Nathaniel Green and Phebe Green his wife, in her right, and the other heirs, were interested in all the real estate of said Alpheus and John lying in this commonwealth, claiming to hold as heirs at law of said deceased, each one undivided fifth part or share; that the names and residences of all parties now interested and their respective shares and proportions are as above set forth, and are not in dispute nor uncertain, they being owners of said real estate, and being all the persons interested therein. Upon this petition, a decree was made on the same day that partition be made as therein prayed for, and a warrant was issued to commissioners to make the partition, who assigned to Phebe Green in severalty, as her full share, the premises demanded ir this action. Nathaniel Green appeared before the commissioners; they made return of the partition to the probate court; and the same was assented to by all the persons interested therein, Nathaniel Green signing his own name, and also that of his Carpenter v. Green. wife, as her attorney. The partition was thereupon confirmed and established on the 3d of June 1862, by a decree of the judge of probate. Before the above proceedings were had, namely, on the 24th of March 1862, Nathaniel and Phebe Green executed a deed of the premises to the tenant, who on the same day reconveyed them to the said Nathaniel; and the tenant claimed title as heir at law of Nathaniel, who died before the commencement of this action. The judge ruled that the partition was conclusive against the said Nathaniel and the tenant; and a verdict was accordingly returned for the demandant. The tenant alleged exceptions. P. E. Aldrich, for the tenant. As between Nathaniel Green and his wife, the partition did not transfer the title from the former to the latter. If one tenant in common conveys his property before partition, his alienee will, upon partition being made, take in severalty the portion set off to his grantor. Cook v. Davenport, 17 Mass. 345. Pond v. Pond, 13 Mass. 413. Green and his wife are to be regarded as one person, so far as the proceedings for partition are concerned. As between them and others interested in the estate, they were concluded by the decree; but as between themselves, the title remained unchanged. E. Mellen, for the demandant. COLT, J. At the time when the petition for partition was presented to the probate court, Nathaniel Green, under whom the tenant claims title as heir at law or devisee, was owner of the undivided interest which his wife, as heir at law of parties. whose estate was then in course of settlement, had previously devised, and which, by the final decree of the probate court upon said petition, was assigned to her in severalty. Nathaniel Green, notwithstanding his title, joined in said petition, alleging that he and his wife were interested in the estate in her right; that the respective shares and proportions thereof were not in dispute or uncertain, and that the petitioners were the owners of said estate, and all the persons interested therein. The return of the cominissioners appointed to make partition was assented to by all the parties to it in writing, said Green signing for himself Carpenter v. Green. and as attorney for Phebe Green; and it was duly decreed by the probate court "that said report be accepted and the partition confirmed and established, and the premises be assigned as described and set off to the several parties therein named.” The question is, whether the proceedings of the probate court are conclusive evidence of the title of Phebe Green, against one claiming title under a party to said proceedings; and we cannot doubt that they are. By Gen. Sts. c. 136, §§ 48–65, jurisdiction is conferred upon the probate court to make partition of the real estate of any deceased person whose estate is in course of settlement before it, with ample provision for the protection of the rights of all parties. The partition, when finally confirmed, is declared "conclusive on all the heirs and devisees of the deceased, and all persons claiming under them; and all other persons interested in the premises who appeared and answered in the case, or assented to the proposed partition as before provided, and on every person so interested on whom notice was served.” § 64. These provisions are substantially the same as those contained in Rev. Sts. c. 103, and are to be construed in connection with the important changes there introduced in regard to the law of real property, as it respects both rights and remedies. In Marshall v. Crehore, 13 Met. 467, Chief Justice Shaw says that the general tenor of this chapter indicates that it was intended to make this proceeding by petition for partition to a much greater extent than formerly an adversary proceeding to try and decide controverted questions of title, and make it to a much greater extent binding and conclusive upor parties and privies, and this not as to possession only, but as to title. And the commissioners, in their notes on the same chapter, say that "a partition which binds the right of possession would, under this change in the law of real actions, bind the right of property also." These remarks have more particular reference to petitions for partition in the common law courts but are equally applicable to such proceedings coming within the probate jurisdiction. There is no reason why a decree of partition in the probate court should be any less conclusive upor |