How v. Waldron

98 Mass. 281 | Mass. | 1867

Chapman, J.

The complainants contend that the respondents are required by the will of Hall J. How to make partition of the estate which they hold in trust and then make conveyance of the several parcels to the devisees. The respondents on the other hand contend that they have nothing to do but convey the estate to the devisees as tenants in common. As the estate is to be equally divided, a partition requires not only that the property shall be divided into equal parts, but that the trustees shall set off to each devisee his respective parcel. This would be a delicate duty for the respondent Hall J. How, who is himself to take one share.

The will directs that the trustees shall hold the property till the year 1865, and, after'making to the widow a certain allowance, “ the trust shall then end, and the trustees convey the same to said children,” “ it being my will that said estate shall then be equally divided amongst my children.” And again: “ Said estate it is my will shall go to my children as abovementioned, their heirs and assigns forever.”

The court are of opinion that this language does not import the duty of making partition. The trust expires with the lapse of time, and the duty of making a conveyance is all that is expressed. A conveyance to the children in common, in equal proportions, effects the intent of the testator.

In a will, the words “ equally to be divided,” or “ share and share alike,” or “in equal shares,” or “equally to be divided between them,” or other equivalent expressions, are construed to give a tenancy in common. Emerson v. Cutler, 14 Pick. 114. Fisher v. Wigg, 1 P. W. 14. Therefore a conveyance to the devisees in common will apparently effect the intent of the testator as expressed in this clause. It is also to be considered that it is sometimes difficult to make partition equal, and that a provision has been found necessary to enable commissioners to make the partition in unequal shares, and give equivalents in money Gen. Sts. c. 136, § 26.

It is contended that other portions of the will, authorizing the trustees to make advances, render it proper for them to make the partition, because they alone could know the amount of the advances. But this was a discretionary power, and does not show an intent to direct the trustees in this respect. The argument that the clause applies to personal as well as real property and that, as personal property is not to be conveyed to them jointly, therefore the real estate should be divided before it is conveyed, has no force, because of the difference in the nature of the property, and because it is not apparent that every species of personal property must be conveyed to each in severalty. The direction that the surplus of the income shall be “ equally divided amongst my children” applies to money in the hands of the trustees, and is to be construed according to the subject matter. Because money is most properly paid over to each in severalty, it does not follow that real estate is to be subjected to the process of partition before being conveyed.

Bill dismissed with costs.