This case is before this court on an application for further appellate review of a judgment by the Probate and Family Court declaring that Ivan Tcherepnin (testator), through his will, devised his home as follows: a life estate to his wife, Sue-Ellen Hershman-Tcherepnin (wife), and a one-fifth future interest in remainder to her and each of his four
1. Procedural background. In June, 2004, after the will was probated, the wife filed a petition for partition in the Probate and Family Court. She claimed that the will granted her “a right to occupy [the house] for life . . . which [she] wishes to hold separately” — i.e., a life estate — and that the will also granted her and each of her four stepchildren a future, one-fifth remainder interest in the house. The wife requested that, if the property could not be partitioned in kind “without great inconvenience,” that it be “set off” to her for an amount “as the commissioners award to make the partition just and equal.”
In March, 2005, the four children filed a response to the
The parties filed cross motions for summary judgment. In September, 2005, a judge in the Probate and Family Court allowed the wife’s motion, concluding that the will is unambiguous and that it devised to the wife a life estate, as well as a one-fifth remainder interest. She concluded that the four children were each given a one-fifth remainder interest and no present possessory interest. The judge further concluded that the wife’s petition for partition did not “amount to a relinquishment of her interest in the . . . property,” i.e., that the wife was “within her rights, as a life tenant, to seek partition of the property without relinquishing her interest.”
Thereafter, in January, 2006, the wife moved for the appointment of a commissioner and for an order to sell the real estate by private sale. The judge denied the motion without prejudice, noting that a partition by sale was premature as none of the parties had yet presented evidence showing the need for a partition, or evidence that a physical partition would be inconvenient or nonadvantageous, making a private sale necessary.
In June, 2006, the judge entered separate and final judgment on the children’s counterclaim for a declaratory judgment, pursuant to Mass. R. Civ. R 54 (b), 365 Mass. 820 (1974). Consistent with her allowance of the wife’s motion for summary judgment, the judge declared that the will unambiguously granted the wife a life estate and a one-fifth remainder interest in the property, “subject to [pjartition pursuant to the provisions of [G. L. c.] 241.” The judge “specifically reserve[d] for later adjudication those aspects of the [petition for partition] relating to the value of the assigned interests in the [property.” Thereafter, the children filed a timely notice of appeal.
2. Factual background,.
“FOURTH: If I do not leave property in this will to one or more of the children or grandchildren whom I have identified above [he identified his four children but no grandchildren], my failure to do so is intentional.”
Under the heading “SPECIFIC BEQUESTS OF PROPERTY,” the will states, in pertinent part:
*81 “SIXTH: I give one fifth (Vs) ownership of the property at 96 Russell Avenue, Watertown, Ma., the right to remain there for as long as she desires, and her choice of furnishings and bric-a-brocs in my house and office, my Macintosh Ilci, monitor and TI laserprinter, fifty thousand ($50,000) dollars in cash or stocks, my 1987 SAAB automobile and the print ‘Boy and Bug’ by Margo Hoff to Sue Ellen Hershman-Tcherepnin. . . .[8]
“TENTH: I give one fifth (Vs) of the property at 96 Russell Ave., Watertown and its furnishings, and all photos and documents pertaining to my mother, to Sarina Tcherepnin. . . .
“ELEVENTH: I give one fifth (Vs) of the property at 96 Russell Ave., Watertown and its furnishings, the Macintosh 5300 powerbook and accessories and the Sharp video-camcorder and tripod to Nicholas Tcherepnin. . . .
“TWELFTH: I give one fifth (Vs) of the property at 96 Russell Ave., Watertown and its furnishings, Macintosh 660AV and accessories, psalteries and santur, electronic music instruments, including Serge Modular stuff, and the Steinway grand piano to Stefan Tcherepnin. . . .
“THIRTEENTH: I give one fifth (Vs) of the property at 96 Russell Ave., Watertown, one fifth (J/s) of all furnishings, all photographic equipment and the Sony Hi-8 videocam and accessories to Sergem[9] Tcherepnin, my son . . . .” (Emphases added.)
Under the heading “RESIDUARY ESTATE,” the will provides:
“FOURTEENTH: I give my residuary estate to my children, Sarina, Nicholas, Stefan and Serge Tcherepnin and my wife, Sue Ellen Hershman-Tcherepnin. ...”
“SEVENTEENTH: Any specific bequest or residuary bequest made in this will to two or more beneficiaries shall be shared equally among them, unless unequal shares are specifically indicated.”
b. Circumstances of the making of the will. The house came into the Tcherepnin family in 1981, when it was acquired by the parents of the testator’s former wife, Anne, the mother of the testator’s four children: Sarina, Nicholas, Stefan, and Sergei. In 1983, the property was transferred from Anne’s parents to Anne and the testator. Seven years later, in 1990, the testator and Anne divorced. In 1994, Anne transferred title solely to the testator.
All of the children lived in the house through the 1980’s, and two of them (Stefan and Sergei) lived there longer. Sergei lived in the house until 1993, when, at approximately age twelve, he moved to Falmouth to live with his mother. He kept his bedroom in the Watertown house, however, and visited nearly every weekend. Stefan also lived in the house until 1993, when, at approximately age fifteen, he apparently moved out. Later, at age sixteen or seventeen, Stefan returned to live in the testator’s house for approximately five more years: from “approximately 1994 to 1999” (according to Stefan), or from July, 1995, to “some time in 2000” (according to the wife).
The wife, a musician (like the testator), met the testator at various concerts in the early 1980’s. She moved into the house in 1995, and occupied Safina’s bedroom.
The testator executed his will on March 13, 1998, approximately one month before he died on April 11, 1998. He ¿rafted the will himself using a computer software program (the record is devoid of any information about the will-drafting software).
At the time the testator executed the will (and at the time of his death), the children’s ages were as follows: Satina, twenty-nine; Nicholas, twenty-seven; Stefan, twenty; and Sergei, sixteen. Stefan was living in the house (apparently with his girl friend), and Sergei, while living with his mother in Falmouth, visited the house nearly every weekend. In fact, all three sons, including Nicholas, “maintained” their own bedrooms in the house. According to the sons, “everyone” — including the testator — considered the property the “ ‘family’ home.” None of the children currently lives in the house.
Although the interpretation of a will begins with the four corners of the instrument, see G. L. c. 191, § 1A (2) (“intention of a testator expressed in his will shall control the legal effect of his dispositions”), it does not necessarily end there. See 2 T.H. Belknap, Newhall’s Settlement of Estates and Fiduciary Law in Massachusetts § 33:30, at 381; § 33:33, at 388 (5th ed. 1997) (“The principal rule is that the primary purpose of construction is to ascertain the intention of the testator, and that this intention is to be gleaned from the four comers of the instrument. All other mies are supplementary to this. ... A will is construed in the light of the surrounding circumstances as they existed at the time of its execution. Consequently evidence is always admissible to show the surrounding facts so far as they are relevant, such as the nature and size of the testator’s estate, his family and relatives and his relations toward them, etc.”); Dunphy, supra at § 30.12, at 596-597 (same).
*85 “In all cases, evidence of surrounding facts and circumstances known to the testator may be received into evidence for the purpose of placing the court in a setting as near as possible to that occupied by the testator at the time the will was written so that it can more clearly ascertain the testator’s intention as expressed in the provisions of the will. But when the will contains a latent [ambiguity, i.e., one that becomes apparent only when the court attempts to apply seemingly clear terms of the will to people or things] or [a] patent ambiguity [i.e., inconsistencies created by obvious conflicts in the language of the will] which cannot be resolved by recourse to evidence of circumstances existing at the time the will was executed, the court has approved the admission of additional extrinsic evidence of facts known to the testator and in light of which he viewed the ambiguous language.”
Smith, The Admissibility of Extrinsic Evidence in Will Interpretation Cases, 64 Mass. L. Rev. 123, 124, 128 (1979). Accord Clymer v. Mayo, 393 Mass. 754, 770 (1985); Dunphy, supra at § 30.12, at 596-597.
a. The testator’s will is ambiguous. Although it is clear that the testator granted the wife and each of his four children a one-fifth ownership interest in the house,
b. The will created a tenancy in common with protection for the wife against removal. Although no authority in Massachusetts or elsewhere resolves this case, analogous cases and general principles governing the creation of estates in real property guide our determination of the nature of the interests created here. We conclude, as did the Appeals Court, that the will devised five concurrent present ownership interests to the wife and children — i.e., that it created a tenancy in common. Hershman-Tcherepnin v. Tcherepnin, 70 Mass. App. Ct. 218, 219 (2007). We also conclude, however, that the wife was given something more than the children by the will’s inclusion of the “right to remain” language: not an additional estate in the property, but special protection against being removed from the home by partition, as the children concede. Finally, we conclude that, in the particular circumstances of the testator’s wishes, the wife terminated her protection against partition by pursuing a petition for partition. We begin by examining whether the will conveys to the wife a life estate and five remainder interests. We conclude that it does not.
Typically, “a conveyance ‘to B during his life’ or ‘to B until
Where a will does not employ the language typically used to create a life estate, the will may nonetheless create a life estate if other factors are present, such as where the will grants the premises to the person in question or requires that person to maintain the property and pay taxes and Insurance on it. See Annot., Quantum or Character of Estate or Interest Created by Language Providing Premises as a Home, or Giving or Granting Same for Such Use, 45 A.L.R.2d 699, 707 (1956) (“In most instances in which the language of disposal does not include a use of the expression ‘for life,’ or a similar one, but gives or grants the premises ‘for so long as’ the conveyee shall occupy the same as a home, or in similar terms, the conclusion reached has been that a life estate was given”). See also cases cited in Hershman-Tcherepnin v. Tcherepnin, supra at 223-225.
In this case, however, the testator did not give or grant the premises — i.e., the entire house — to the wife for so long as she desired to live there; he gave her only one-fifth of the house and the right to remain there for as long as she desired. Nor did he require, through his will, that the wife maintain the property or pay taxes or insurance on it. That the wife voluntarily assumed those duties in 2000 does not change the fact that the will did not
Another reason that we conclude that the will did not create a life estate and five remainder interests is the absence of remainder language. Ordinarily, a future estate is created by language such as: “ ‘to B for life, remainder to C and his heirs’ — B has a present life estate, and C has a remainder in fee simple.” Al-perin & Shubow, supra at § 17.25, at 595. Another example is: “to B for life, then to C and his heirs.” Id. at 596. See Wil-marth v. Bridges, supra at 408, 410-411 (remainder created where property devised to daughter for “so long as she chooses to” occupy it, and “whenever [she] shall cease [to do so], that the whole shall be divided among my children”). Here, no such comparable language was used.
Moreover, to read the will to grant the wife a life estate would be to give her a disproportionate share of the house — a one-fifth interest plus a life estate. The will and the circumstances under which it was created belie that reading and instead show that the testator intended to divide the house equally. The specific bequests in clauses six and ten through thirteen give the wife and each child a one-fifth interest in the house and its furnishings (with the wife getting first choice of the furnishings). And the seventeenth clause provides: “Any specific bequest or residuary bequest made in this will to two or more beneficiaries shall be shared
The wife began living in the home only in 1995 — relatively late compared to the children, who had grown up in the house in the 1980’s. And even after the sons moved away, they continued to maintain their bedrooms in the house; “everyone,” including the testator, considered the house the “ ‘family’ home.” Moreover, at the time the will was created, Stefan was living in the house, and Sergei was visiting nearly every weekend. When the testator died, he had been married to the wife for a few months. Those circumstances support the view that the testator intended to give the wife not a disproportionate share of the house, but to give her and each child equal shares of the property.
By giving the wife and the children equal, present shares in the house, the testator created a tenancy in common. See G. L. c. 184, § 7 (“A conveyance or devise of land to two or more persons . . . shall create an estate in common”); Hurley v. A’Hearn, 338 Mass. 695, 697 (1959) (devise of land and buildings to parties “share and share alike” created tenancy in common). Accord Alperin & Shubow, supra at § 17.43, at 610. As such, each “has an equal right of entry, occupation and enjoyment, the possession of one being presumed to be the possession of all.” Muskeget Island Club v. Prior, 228 Mass. 95, 96 (1917).
But the testator also gave the wife something above and beyond what he gave the other cotenants: the “right to remain” in the house “for as long as she desires.” The testator was not an attorney, and so we consider the literal meaning of the words he used. See Hershman-Tcherepnin v. Tcherepnin, 70 Mass. App. Ct. 218, 225-226 (2007), citing Cruse v. Reinhard, 208 S.W.2d 598, 601, 605 (Tex. Ct. App. 1948). The context in which the will was made indicates that the testator’s intention in providing the wife with the “right to remain” was to ensure that the children could
That the law of tenancies in common protects each cotenant from ouster is not to say, however, that the “right to remain” language is mere surplusage. We must give effect to that language, if possible. See Dunphy, supra at § 30.2, at 575; note 15, supra. We conclude that the “right to remain” language, while unnecessary to ensure the wife’s protection from ouster, is meaningful as a means to accomplish the testator’s intent to provide the wife with a home insofar as it protects her from losing her possessory interest through a partition (a point conceded by the children).
While a tenancy in common carries with it protection from
Thus, consistent with the testator’s intent that the wife be protected against removal from the house by the children, we conclude — consistent with the children’s concession — that he intended that she be protected against partition. In other words, we conclude that, in these circumstances, the testator’s use of the “right to remain” language is tantamount to a restraint on the children’s ability to partition the property for as long as the wife chooses to remain there (i.e., no longer than her lifetime). See Dunphy, supra at § 16.3, at 247 (“A testator could restrict partition by his devisees for a reasonable period of time”). See also
Although we conclude that the testator granted the wife protection from partition, in the particular circumstances of this case we conclude that the wife relinquished that protection by seeking partition. First, although she contended in her petition for partition that she held a life estate in the property and that
The Massachusetts partition statute, G. L. c. 241, does not authorize the partition of future interests by a life tenant, and historically we have denied such partition. See G. L. c. 241, § 4 (“court may make partition ... of the land included in the petition of which the parties thereto are co-tenants”); Allen v. Libbey, 140 Mass. 82, 83-84 (1885) (where widow held life estate in land as undivided one-half possessory interest shared with heirs, present possessory interests could be partitioned but not reversionary interests); Judkins v. Judkins, 109 Mass. 181, 182 (1872) (where life estates devised to petitioner and brother as tenants in common and remainder interests devised to heirs, partition “can extend only to the interest of which [the brothers]
In any event, that the wife could have pursued a partition as an owner of a one-fifth interest in the property as a tenant in common with the children does not guarantee that the wife would have been able to obtain sole possession of the house by purchasing the children’s shares, see note 2, supra, or that she would even have been able to remain in the house. See note 23, supra. In fact, unless the house can be partitioned in kind, which seems doubtful, it will have to be sold. See notes 2, 3, & 23, supra. That the wife anticipated the sale of the house is buttressed by the fact that she not only petitioned for partition, but she also moved for the appointment of a commissioner and an order directing that the property be sold. In sum, while not relinquishing her one-fifth ownership interest in the house, the wife, by seeking to partition the property, has demonstrated her willingness to give up her “right to remain” there “for so long as she desires.” Cf. Alperin & Shubow, supra at § 17.13, at 580 (defeasible fee may be created by language indicating duration, e.g., “as long as”; “when the specified state of affairs ceases to exist or the specified event occurs, the estate expires by operation of law”). We thus conclude that, in the unique circumstances of this case, the wife has terminated her protection against partition.
4. Conclusion. The testator’s will devised to the wife and
So ordered.
General Laws c. 241, § 14, provides: “If a part of the land cannot be divided without great inconvenience to the owners, or is of greater value than the share of any party, or if all the land cannot be divided without such inconvenience, the whole or any part thereof may be set off to any one or more of the parties, with his or their consent, upon payment by him or them to any one or more of the others of such amounts of money as the commissioners award to make the partition just and equal.” See King v. Reed, 11 Gray 490, 491-492 (1858) (to whom property should be set off depends on circumstances of parties — divestment of estate may be more injurious to one cotenant than another; one may be willing to pay more than appraised value).
General Laws c. 241, § 31, provides, in pertinent part: “In partition proceedings the court may order the commissioners to sell and convey the whole or any part of the land which cannot be divided advantageously, upon such terms and conditions and with such securities for the proceeds of the sale as the court may order, and to distribute the proceeds so as to make the partition just and equal.... [T]he sale may be a private sale, upon the terms as the court orders, if it finds after notice, as provided in section 8, and a hearing, or after receiving the written assent of all parties in interest, that the interests of all parties will be promoted thereby. ...”
The children argued that, until the court determined the interests devised under the will, partition of the property would be premature. “The interpretation and construction of a will... [is most commonly] sought in a complaint for instructions, a complaint for declaratory relief, or an action for instructions and declaratory relief.” S.M. Dunphy, Probate Law and Practice § 30.2, at 573 (2d ed. 1997) (Dunphy).
See Delta Materials Corp. v. Bagdon, 33 Mass. App. Ct. 333, 338 (1992), quoting Heald v. Kennard, 180 Mass. 521, 522 (1902) (neither party has burden of proof on whether property can be advantageously divided; court must find by preponderance of evidence that it cannot do so before ordering a sale; “[a] sale is not simply an equally available alternative to a physical division; it may be ordered only after the court determines, upon careful findings, that advantageous division cannot be made”; “the advantage or disadvantage generally must be pecuniary”).
On March 2, 2007, while the children’s appeal was pending in the Appeals Court, the judge conducted a trial on the value of the property. In a judgment dated May 21, 2007, the judge found that, as of the date of trial, the fair market value of the property was $790,500; the value of the wife’s life estate was $613,169.86; and the value of the one-fifth remainder interests (the wife’s and the children’s combined) was $177,330.14. When the case was argued in the Appeals Court on June 8, 2007, counsel for the wife informed the court about the valuation trial and judgment, and the court invited counsel to submit a copy of the judgment; counsel did so without objection. We do not rely on that valuation judgment in deciding the matter before us. However, because we conclude that the wife does not own a life estate, the value of the parties’ respective interests will have to be recalculated on remand.
The summary judgment record consists, in pertinent part, of the following: the pleadings (the wife’s petition for partition; the children’s response and counterclaim for a declaratory judgment; and the parties’ cross motions for summary judgment); a joint pretrial memorandum including stipulations of uncontested facts; the testator’s will; affidavits from the wife, the testator’s brother, Peter (the executor), and each of the children; the wife’s answers to interrogatories; and deeds concerning the house.
8 In articles seven through nine, the testator bequeathed certain personal property and money to his former wife, Anne, and other personal property to his brothers.
9 In the will, the testator spelled his youngest son’s name “Serge,” but the son, in his affidavit, spelled his name “Sergei.”
When Stefan returned to the house, the testator required Stefan to sign a contract that the testator and the wife had devised, mandating that Stefan find employment, perform household chores, and observe appropriate standards of behavior. If Stefan failed to meet those criteria, he would be required to move out. In addition, according to the wife, the testator “insisted that Stefan not have a key to the house.” Stefan apparently abided by the contract (he was not forced to move out), and he eventually moved out on his own in 1999 or 2000, to attend college in Ohio. There is no evidence that he later sought to return to the house to live.
At the time, the wife was approximately forty-one years old. In March,
According to the wife, while the testator was working on the will he asked her “if she wanted to remain living” in the house after his death, and she said, “yes.” As discussed below, statements by a testator about his intent in his will are not admissible in construing the will. See note 16, infra. Nothing meaningful is lost by the exclusion of the testator’s statement, however, because the language of the will itself says the same thing that the testator told the wife orally — i.e., that she had “the right to remain [in the house] for as long as she desires.”
In the summary judgment record, there is no affidavit from the attorney, nor did the parties in their pretrial memorandum list the attorney as a potential witness. No party has made any suggestion that the attorney would add anything helpful to discerning the testator’s intent.
Shortly after the testator died, the wife asked Satina and her husband whether they wished to move into the house with her, but they declined. Although the will did not require her to do so, in 2000, the wife began assuming the costs of the mortgage, taxes, maintenance, repairs, and homeowner’s insurance. From 1998 to 2000, the mortgage and taxes had been paid by the
“The court first attempts to ascertain the testator’s intention by interpreting the language used by him, by studying the will as a whole, giving weight to the ordinary meaning of the words used, the context in which they appear, and considering other relevant evidence, including the circumstances in which the will was drafted. If the testator’s intention cannot be ascertained by such interpretation the court will then resort to the rules of construction.” Dunphy,
When a will is ambiguous, extrinsic evidence regarding the testator’s state of feelings toward and relations to the claimants (including the testator’s own statements in those regards) is admissible. See Boston Safe Deposit & Trust Co. v. Prindle, 290 Mass. 577, 582 (1935). What may not be admitted is direct expressions of intention made by the testator, or other extrinsic evidence used to create an ambiguity or to alter rather than explain the language of a will. See Smith, The Admissibility of Extrinsic Evidence in Will Interpretation Cases, 64 Mass. L. Rev. 123, 125-128 (1979); Boston Safe Deposit & Trust Co. v. Prindle, supra. See also Flannery v. McNamara, 432 Mass. 665, 669-673 (2000); Calder v. Bryant, 282 Mass. 231, 239 (1933); 2 T.H. Belknap, Newhall's Settlement of Estates and Fiduciary Law in Massachusetts § 33:33, at 388 (5th ed. 1997).
The following cases illustrate the difference between clear and ambiguous provisions in a will. Compare Gustafson v. Svenson, 373 Mass. 273, 275 (1977) (no ambiguity in phrase “his heirs per stirpes” where “heirs,” by force of statute, included surviving spouse; extrinsic evidence of statements made by testatrices to attorney that they wished residuary estate to pass to brother but not his wife inadmissible); Watson v. Goldthwaite, 345 Mass. 29, 33 (1962) (no ambiguity in word “issue,” which has technical legal meaning referring to all lineal descendants; extrinsic evidence of testimony pertaining to testatrix’s written instructions inadmissible); McMillen v. McMillen, 57 Mass. App. Ct. 568, 569-576 (2003) (no ambiguity in meaning of “paintings, furniture and furnishings” in will where court looked to dictionary definitions and precedent from other jurisdictions to determine meaning of those terms), with Putnam v. Putnam, 366 Mass. 261, 269-271 (1974) (where conflict in language of will created ambiguity regarding testator’s intent with respect to estate tax marital deduction, extrinsic evidence concerning statements of testator’s attorney, will of testator’s wife, and size of testator’s estate relative to his wife’s were admissible); Cronan v. Cronan, 286 Mass. 497, 498-502 (1934) (where will directed that property was not to be sold for ten years, that executors could do so after ten years if “to a good advantage,” and that all property was to be divided at end of ten years, ambiguity whether property had to be sold or divided after exactly ten years or whether property could be sold thereafter and the proceeds divided; extrinsic conditions of real estate market relevant); Sullivan v. Sullivan, 26 Mass. App. Ct. 502 (1988) (whether will that devised property to certain individuals devised property only to those individuals or to class was ambiguous; extrinsic evidence of testator’s feelings toward claimants admissible).
The difference between the bequest to the wife (“I give one-fifth [Vs] ownership of the property”) and the bequests to each child (“I give one-fifth [Vs] of the property”) is of no consequence (emphases added). “[A] conveyance ‘to B’ will give B an estate in fee simple absolute.” H.J. Alperin & L.D. Shubow, Summary of Basic Law § 17.12, at 579 (3d ed. 1996) (Alperin & Shubow). See G. L. c. 183, § 13 (“A deed or reservation of real estate shall be construed to convey or reserve an estate in fee simple, unless a different intention clearly appears in the deed”).
Compare Clymer v. Mayo, 393 Mass. 754, 770 (1985) (resolving ambiguity regarding identity of donees based on agreed statement of uncontested facts); Putnam v. Putnam, supra at 266-271 (on report from Probate and Family Court on statement of agreed facts, ambiguous provision in will regarding marital tax deduction resolved by reference to extrinsic evidence); Tucci v. DiGregorio, 358 Mass. 493, 493-494 (1970) (where petition for declaration of rights of two sisters regarding whether testator devised two-family home and garages to one or both sisters was submitted on agreed statement of facts, court “decide[d] the questions of law involved unaffected by the [trial judge’s] decision”), with McKelvy v. Terry, 370 Mass. 328, 334-335 (1976) (where will ambiguous regarding exercise of power of appointment, trial held to resolve factual dispute concerning extrinsic evidence regarding actions of testator and attorney who drafted will); McMillen v. McMillen, 57 Mass. App. Ct. 568, 569-576 (2003) (on complaint for instructions regarding meaning of “paintings, furniture and furnishings” in will, trial held to resolve factual disputes about circumstances of will’s creation, including how testator regarded his personal property).
“The owner of a possessory life estate, i.e., the life tenant, has a right to the exclusive possession of the land.” Alperin & Shubow, supra at § 17.15, at 585. See Tinkham v. Wind, 319 Mass. 158, 160 (1946). And if a remainder interest has been created, “during the existence of the life estate the remainderman is not entitled to possession until the death of the life tenant.” Daley v. Daley, 308 Mass. 293, 307 (1941). “A life estate is alienable by the life tenant, and he can accordingly convey his estate to a third person, or mortgage it, or lease it for a term of years.” Alperin & Shubow, supra at § 17.15, at 586.
“The interest of a tenant in common is alienable, and may be transferred without the consent of the co-tenants by deed, lease, mortgage, will, or intestate succession.” Alperin & Shubow, supra at § 17.43, at 610.
“Whether an instrument which does not include language amounting to a direct gift or grant, but entitles one to the use of premises as a home so long as he remains thereon, or desires the same for such purpose, or sees fit so to use the premises, or which makes other comparable provision, operates to vest in the individual a life estate, or merely a personal right or privilege, is of course a matter of the construction of the particular instrument.” Annot., Quantum or Character of Estate or Interest Created by Language Providing Premises as a Home, or Giving or Granting Same for Such Use, 45 A.L.R.2d 699, 715-716 (1956).
Although the “preferred method of partition is the physical division of the property among the co-tenants or ‘division in kind,’ ” Alperin & Shubow, supra at § 17.44, at 613, see also notes 2 & 3, supra, it is unclear whether the house in this case can be physically partitioned (the house is a single-family, two-story Victorian, according to a representation by the children’s attorney at oral argument). Whether the house here can be divided in kind has not yet been litigated, as the Probate and Family Court judge noted when she denied without prejudice the wife’s motion for appointment of a commissioner and for an order to sell the property at a private sale. See note 5, supra. We note, however, that physical partition of a single-family house has often been considered impossible. See, e.g., DeRosa v. DeRosa, 22 Conn. App. 114, 115 (1990) (single-family house and lot “obviously impossible physically to divide”); Fain v. Beaver, 478 S.W.2d 816, 821 (Tex. Ct. App. 1972) (“house and lot was manifestly incapable of partition in kind”); Craig-Taylor, Through a Colored Looking Glass: A View of Judicial Partition, Family Land Loss, and Rule Setting, 78 Wash. U. L.Q. 737, 756-758 (2000) (importance of preserving alienability of property principal reason courts typically order house sold rather than actually divided).
In the fourth clause of the will, the testator stated that if he did not “leave property ... to one or more of the children . . . [his] failure to do so [was] intentional.” Our conclusion that the testator, through the “right to remain” language, gave the wife something more than he gave the children — a right against partition — is consistent with the intent in the fourth clause: although the “right to remain” is not an estate interest in the house, it is a right or privilege in the property that was left only to the wife.
Some courts have held that a cotenant’s right or privilege to occupy property may coexist with the rights of other cotenants to partition the property, but those cases have involved property that was already physically divided, not a single-family home. See Hunt v. Meeker County Abstract & Loan Co., 128 Minn. 207, 208-209, 212-213 (1915) (two-story commercial building with physically divided offices could be partitioned despite cotenant’s right of occupancy); Cruse v. Reinhard, 208 S.W.2d 598, 602-603, 607 (Tex. Ct. App. 1948) (right of occupancy in “home” consisting of various distinct living spaces “will not prevent a partition” of the estate, including the “home”; “the partition will be subject to [devisee’s] right of occupancy,” i.e., it “will be impressed with [her] right of occupancy if it is awarded, in whole or in part, to someone other than [herself]”; right “may still subsist after a sale has been made in the partition proceeding, and no reason occurs to us why a sale may not be made subject to such rights”). Cf. Hesseltine v. Partridge, 236 Mass. 77, 79, 81 (1920) (where will bequeathed house to daughters and granted privilege to widow to use property as residence, court noted bequest and grant “are not repugnant to each other, and both would have taken effect if the widow had not waived the provisions of the will”).
See, e.g., Brown v. Brown, 67 W. Va. 251, 253 (1910) (testator conveyed estate to wife for life with remainders to children and grandchildren; widow conveyed life estate to one of the children; that child was barred from compelling partition of remainder interests even though he held remainder interest himself; “[a] life tenant cannot have partition unless he waives his life estate, and thus gets it out of the way, destroys it, and lets the remaindermen at once come in. Had the plaintiff done this, he could as remainderman have sustained his case, but he did not do so”; “[t]he remaindermen could not ask partition pending the life estate . . . [t]he right ought to be mutual”); Pabst Brewing Co. v. Melms, 105 Wis. 441, 441-442 (1900) (owner of life estate in six-sevenths of property who also held one-seventh in fee could not partition property where others owned six-sevenths in remainder; “there is no joint possession to be divided. The plaintiff has the sole right of possession of the entire premises. There are no cotenants in possession, or entitled to possession, so long as the life estate remains in esse”).
Even were the wife to make a declaration of a homestead estate under G. L. c. 188, §§ 1 and 2, that would not defeat the rights of the children, as tenants in common with the wife, to seek a partition of the property. See Ladd v. Swanson, 24 Mass. App. Ct. 644, 646 (1987).