ing been duly entered], and the matter coming on regularly to be tried by the court, G H, Esq., appearing as the attorney for the plaintiff A B, and I J, Esq., appearing as attorney for the defendants M N, O P and Q R ; and evidence having been introduced, and the matter having been argued by the attorneys of the respective parties, and submitted to the court, the court finds that C D died intestate, and that he left him surviving no wife, or father, or mother, and no child or descendant, and that he has no child or descendant ;

That A B, the plaintiff, is the only son and descendant of KL, a brother of C D, said deceased, and that said K L died in the lifetime of C D, said deceased. [And so on in respect to each person who has answered in the proceeding, showing how he has an interest in the estate. And if any of the defendants have no interest in the estate, the facts by which this is shown should be found.]

And the court finds as conclusions of law:

That the plaintiff A B is an heir of C D, deceased, and is entitled as such to an undivided of his estate; [and insert proper conclusions of law from the facts found as to each defendant's claim].

IT IS THEREFORE ADJUDGED AND DECREED that said C D died intestate, and the plaintiff A B is an heir of C D, the deceased, and is entitled to distribution to him of of the estate of C D, deceased, which shall be distributed; [and in a like manner as to each of the defendants.]

IT IS FURTHER ADJUDGED AND DECREED that the costs of this proceeding are apportioned as follows: [State how.] [Date.]

Judge.

If the estate of a decedent be distributed to two or more persons in common and undivided, it can be partitioned by proceedings in the probate court if the estate has not been closed in that court.

FORM NO. 346.

PETITION FOR THE PARTITION OF THE ESTATE OF A DECEDENT.

[Title of Proceeding.]

A B petitions the court and alleges and shows that C D died intestate, and that your petitioner is an heir of the decedent, and is entitled to a distributive share of his estate;

That K L and M N are also heirs of said C D, deceased, and each of them is entitled to a distributive share of the estate of C D, deceased;

That said estate is ready for distribution to [or has been distributed to] your petitioner and said K L and M N, and the respective shares of your petitioner and said K L and M N, in said estate, will be assigned [or has been assigned] by the decree of distribution of said estate to him and them in common and undivided and not separated or distinguished;

That it will be for the best interests of all persons interested in said estate that said estate so distributed [or when distributed] be partitioned, and that the share of each person interested in said estate be set out to him in severalty.

WHEREFORE your petitioner prays that three disinterested persons be appointed by the court commissioners to make such partition.

G H,

Attorney for the Petitioner.

FORM NO. 347.

NOTICE OF PETITION IN PROBATE PROCEEDINGS FOR THE PARTITION OF THE ESTATE OF A DECEDENT.

[Title of Proceeding.]

NOTICE.

To K L and M N, and to all persons who are interested in the estate of C D, deceased:

You are notified that A B, one of the heirs of C D, deceased, has petitioned the court to appoint three disinterested persons as commissioners to partition, divide, and set out in severalty to each of the heirs of said decedent so much of the property of

the estate of said decedent to be distributed as will be equal in value to the share of such estate to which such heir is entitled. You are further notified that said petition will be presented to the court for action thereon, on the

day of

at

G H, Attorney for A B.

This petition may be filed and the notice given before decree of distribution, but the commissioners must be appointed after such decree. The notice may be served personally, or by public notice, as the court may direct; by consent of the parties, or when the court deems it proper and just, one commissioner only may be appointed.

No decree of distribution will divest the court of jurisdiction to order partition, unless the estate is finally closed. C. C. P., section 1668.

A certified copy of the order of the appointment of the commissioners and of the decree assigning and distributing the estate, must be issued to them as their warrant; and their oath that they will faithfully discharge their duties must be endorsed thereon.

Before partition is made by the commissioners, notice must be given to all persons interested in the partition of the time and place when and where they will proceed to make the partition, and the commissioners may take testimony, order surveys, and take such other steps as may be necessary, to enable them to form a judgment upon the matters before them.

FORM NO. 348.

ORDER OF COURT APPOINTING COMMISSIONERS TO MAKE

[Title of Proceeding.]

PARTITION.

A B, one of the heirs of C D, deceased, having filed his petition asking the court to appoint three disinterested persons commissioners to partition and set out in severalty to each person interested in the estate of C D, deceased, the portion of the property of the estate of said decedent to which he is entitled, and due notice of the hearing of such petition having been given, and the court having made an order and decree of distribution, showing the share in the property of the estate of said decedent to which each of his heirs is entitled, and such shares having been distributed in common and undivided, and not being separated and distinguished; and said matter coming on regularly to be heard on the day of, G H, Esq., appearing as attorney for the petitioner A B, and I J, Esq., appearing as attorney for K L and M N;

IT IS ORDERED that O P, Q R and S T, three disinterested persons, be and they are appointed commissioners to partition and set out in severalty to each person entitled to a distributive share of the estate of C D, deceased, such portion thereof as will be equal in value to his distributive share thereof, and to perform other duties of such commissioners as required by law. [Date.]

Judge.

When the petition is made by a devisee, legatee, or other person in interest, the facts which would give the petitioner the right to have the commissioners appointed should be stated in a manner similar to the statement of the facts in such petition by an heir.

If the commissioners, or commissioner, partition the real estate and personal property, or either, among the heirs at law, or the devisees or legatees of a decedent, or other persons entitled thereto, the several shares therein must be set out to each individual in proportion to his right; and if the estate partitioned be real estate it must be partitioned and set out to each party entitled thereto by metes and bounds in proportion to his right; and if it be personal property it must be partitioned and set out to each person entitled thereto in proportion to his right, so that the same can be easily distinguished; unless two or more of the parties interested consent to have their shares set out so as to be held by them in common and undivided.

But if the real estate cannot be divided without prejudice or inconvenience to the owners, the court may, on the filing of the report of the commissioners, or commissioner, if it appear just and proper, confirm the report and assign the whole thereof to one or more parties entitled to a share therein, who will accept it, preferring the males to the females, and among children, preferring the elder to the younger.

The parties, or party, accepting the whole must pay to the parties interested their just proportion of the true value thereof, or secure the payment of the same to their satisfaction; and the value of the estate must be ascertained and reported by the commissioners or commissioner.

The commissioners, or commissioner, in partitioning real estate, may partition and divide in severalty to one of the parties interested, real estate, which is greater in value than his share in the estate of the decedent, on his paying to the others interested such sums as the commissioners, or commissioner, award to make the partition equal; and on the filing of the report of the commissioners, or commissioner,, the court, if it appear just and proper, will confirm such report.

If the commissioners report, and it appear to the court from such report, and from evidence, that property of the estate cannot be otherwise fairly divided, and should be sold, and the net proceeds of the sale be divided, the court may, if the report be confirmed, order such property sold by the executor or administrator or a commissioner appointed by the court, and the net proceeds divided among the parties interested; such sále to be made and the sale reported to and confirmed by the court (if confirmed by the court), in the manner as in the case of other sales by an executor or administrator of the property of the estate of a decedent.

When the report of the commissioners, or commissioner, is filed, and the time of the hearing of the report is fixed by the court, and due notice of such hearing is given, the court on such hearing may confirm the report, or set it aside, and commit the matter to the same commissioners, or appoint other commissioners

If the court confirm the report and the commissioners have partitioned land. a certified copy of the judgment of confirmation must be recorded in the County where the land lies.

FORM NO. 349.

DECREE OR JUDGMENT CONFIRMING THE REPORT OF THE COMMISSIONERS.

[Title of Proceeding.]

A B, one of the persons interested in the estate of C D, deceased, having petitioned the court to appoint three disinterested persons commissioners to partition and set out in severalty, to each person interested in the real estate of CD, deceased, by metes and bounds, a portion of said real estate which is in proportion to his right in said estate, and O P, Q R and S T, three disinterested persons, having been duly appointed for that purpose, and said commissioners having been duly and regularly sworn to faithfully discharge their duties, and said commissioners having examined such real estate, and made partition thereof among the persons interested in said estate in proportion to their respective rights, and having filed their report, and the court having fixed the time for the hearing of said report, and having directed that notice thereof be given to all persons interested in said estate, and it having been proven to the satisfaction of the court that such notice has been given as required by law, and as directed by the court, and said matter coming on regularly to be heard by the court on the of ;G H, Esq., appearing for the petitioner A B, and I J, Esq., appearing for K L and M N, who are interested in said estate of C D, and evidence having been introduced, and the matter having been argued by counsel, and submitted to the court, the court finds that the report of the commissioners is just and correct, and should be confirmed;

day

IT IS THEREFORE ADJUDGED AND DECREED that said report be and the same is confirmed.

IT IS FURTHER ADJUDGED AND DECREED that the real estate of the estate of C D, deceased, namely, [describe the real estate] be and it is partitioned, and a portion thereof be and is set out in severalty, and to be his separate property, to each of the persons interested in the estate of C D, deceased, as follows, namely: To the petitioner A B, [describe his portion].

To K L, [describe his portion].

To M N, [describe his portion].

AND IT IS FURTHER ADJUDGED AND DECREED that a certified