KAREN ANN BRODERICK & another vs. RAYMOND W. GIBBS.

WANITA M. WILDER vs. ROY C. STEEVES.

1 Mass. App. Ct. 822

May 8, 1973

On March 25, 1970, an interlocutory decree was entered in the Probate Court appointing a commissioner and ordering partition by sale of land owned, according to the decree, by a father (then under conservatorship) and his daughter as tenants in common. No appeal was taken from that decree.

Page 823

Pursuant to the decree a warrant was issued to the commissioner on April 8, 1970. The father died on June 8, 1970. This is an appeal by the daughter from the dismissal of her petition to vacate the interlocutory decree and to enjoin the commissioner from selling the land. Her petition alleges (and the parties agree) that she and her father held the land not as tenants in common but as joint tenants. In his report of material facts the judge made no finding on the daughter's further allegation (which was waived in oral argument before this court) that she had received no notice of the interlocutory decree. That decree conclusively determined the rights of the parties; and following its entry no question remained open concerning either ownership or title. Brown v. Bulkley, 11 Cush. 168 , 160-170. Savery v. Taylor, 102 Mass. 509 , 511. The death of the father following the entry of the interlocutory decree ordering partition did not change the result. Cf. Minnehan v. Minnehan, 336 Mass. 668 , where no decree ordering partition had been entered prior to the death of the ward.

Decree affirmed.