Ezekiel Allen & wife vs. Mary Hoyt & others, 5 Met. 324

Hubbard, J. One objection made by the respondents to the prayer of the petition is, that all the real estate, which belonged in common to Thomas and Francis Roberts, is not embraced in the petition, and that they are not entitled to partition of the undivided half of the estate devised by Thomas, without including the estate left by Francis Roberts.

It appears by the facts agreed in the case, that after the decease of Thomas who died testate, and Francis who died intestate, the estate which the two brothers held in common was divided in the probate court, and that the portion assigned to the heirs of said Francis was duly set oiF among them. The regularity of the proceedings in the probate court is not brought in question before us by either party, and no appeal having been taken from the decree of distribution made by that court, we are not at liberty to dis turb it, or treat it as a nullity, as the respondents contend for.

Besides; we see no reason, for the cause assigned, to set it aside, even if the decree of partition had been appealed from ; because the devisees of Thomas and the heirs of Francis are not in every instance the same persons ; and where they are the same, they are interested in different proportions in the respective estates of said Thomas and Francis.

In respect to the half of the dwellinghouse and the appurtenances, belonging to the said Thomas Roberts, of which partition is prayed by the petitioners, it appears, by the will, that he made his four nieces, Sally Allen, (including her children,) Mary Hoyt, Abigail Roberts and Elizabeth Roberts, the especial objects of his bounty ; but instead of devising his real esiaf e among them, into four parts, he divided it into fifths, and gave to his niece Elizabeth, in consequence of her blindness, two fifth parts of his real estate, and to Sally, Mary and Abigail one fifth part each.

But as to his household furniture and pew, he gives each a fourth part, and in addition to his devise to Abigail Roberts of one fifth part of his real estate, he gave one fourth of the dwellinghouse, owned in common with his brother ; and also to Elizabeth Roberts one fourth part of the dwelling-house lying in common, as abovenamed. The petitioners, Ezekiel Allen and wife, claim an undivided fifth part of the dwellinghouse, as a portion of the real estate of said Thomar Roberts.

But to entitle them to such partition, we must either treat the devise of the dwellinghouse to the two other sisters as merged in the devise of the real estate, or we must consider that he meant to give a fourth part of one half of the dwellinghouse, or one eighth part each, to Elizabeth Roberts and Abigail Roberts, and three eighth parts to Sally, Mary and Abigail. But - we think this is not the construction of the clauses of the will; but that the half of the dwellinghouse was a specific devise to the two sisters, and that it was the residue of his real estate which he devised to the five sisters.

The last question is, what estate Sally Allen, the petitioner, took under the will. The will is inartificially drawn, and it is not easy to ascertain the precise intention of the testator. The counsel for the petitioners contends, that it was the intention to give the estate in fee to Mrs. Allen and her heirs, and that such would be the popular understanding of the will ; while it is argued on the side of the respondents, that she took either an estate in common with her children, or an estate for life, and her children the remainder.

As we have no means, but from the language of the will, to arrive at the intention of the testator, we must give the words their legal meaning, as expressive of his intention. We are of opinion, that in the devise, “ I give to Sally, wife of Ezekiel Allen, and her children, one fifth part of all my real estate,” the words, “ and her children,” are words of purchase, and not of limitation.

If there had been no children born at the time of the devise, these words would be construed as words of limitation, if necessary to give effect to the intention of the testator ; and the devisee would then have taken an estate tail, because the intent of the devisor was certain, that the children should take, and there were none in being to take by way of remainder.

But in the present case, the children were living at the time of the devise, and capable of taking ; and the inten tion being expressed that they should share with the mother, they will take with her as tenants in common of one fifth part of the devised estate : And with this agrees the rule in Wild’s case, 6 Co. 16 b. In the present case, the fee passes, as the residuary estate devised, and it was the testator’s intention to dispose of the whole estate. See Buffar v. Bradford, 2 Atk. 220. See also Annable v.

Patch, 3 Pick. 360, where it is held that by a devise of “all the remainder of my estate, both real and personal, to my daughter S. A. and the children of her body,” S. A. and her children take as tenants in common. Agreeably to this opinion, therefore, the petition may be amended, and the children made parties, by their guardian, and the shares of the petitioners may be set off together, or in sevalty, at their election. Rev. Sts. c. 103, § 21.

And we see no objection to a farther amendment of the petition, so as to include the part which was set off to the widow, who has deceased, and w'hich is said not to have been divided.