Commissioners to set off dower allotted to a widow a larger dower than the decree of the Probate Court appointing them justified. On the application of a co-tenant of a part of the realty involved, a new trial of the dower proceedings in the Probate Court was ordered, the widow being allowed to substantiate if she could a claim made by her that she was entitled to the full dower set off to her.
DURFEE, C.J.
We think a new trial should be granted. The petition, which is sworn to, shows that the petitioner testified before the Municipal Court under a misapprehension in regard to the meaning which would naturally attach to his testimony, and that, but for this misapprehension, the final decree might have been different. It also shows that the petitioner did not learn, until shortly before his application, that the final did not follow the preliminary decree. It is objected that the application is made too late. The statute requires such an application to be made within one year after the case shall have been tried or decided. The application here was within a year after the entry of the final decree. It is true the preliminary decree awarding dower and appointing commissioners to set it off was made more than a year previous to the application. But the petitioner does not complain of any error in that decree. He is entirely willing that decree should stand as entered. He complains only of the commissioners' report and of the decree confirming it. Upon that point the decision was made less than a year before the application, and the application was therefore not out of due time.
The respondent claims that the final decree is substantially right as it stands, and asks permission to show it in this court. But we think that is a matter to be tried in the Municipal Court, and, in order that the respondent may not be in any way embarrassed by the preliminary decree (as to the effect of which, however, see Freeman on Co-tenancy Partition, § 519), we shall grant the new trial, subject to the express condition that she shall be allowed to establish her right of dower, if she can, in the entirety of the eight lots mentioned in the petition, and that the preliminary decree shall be still open to modification and amendment.
Petition granted.