Reed v. Reed

9 Mass. 372 | Mass. | 1812

By the Court.

The devise is direct to the widow. A devise of the income of lands is the same in its effect as a devise of the lands. The petitioners have, however, mistaken their rights. During the life of their mother, they are entitled to no more than two seventh parts of two thirds of the land described in their petition.

Curia.

Let the widow’s appearance be entered; and let the petitioners alter their petition as moved for.

As to the question of costs referred to us by the parties, the provincial statute giving this process ⁽³⁾ made no provision for costs in any case; and. the statute now in force gives them only upon the determination of an issue either of law or fact. ⁽⁴⁾ No such issue has been joined in this action. No costs can, therefore, be allowed. If parties, agreeing to cases stated for the opinion of the Court, would have costs await the decision, it must be made part of their agreement. The agreement in the present case is not sufficient, and no costs can be taxed for either party. Let a warrant issue for partition, as prayed for in the amended petition, without costs, ^(a)

(3) Mass. Laws, vol. ii. 1040.

(4) Stat. 1786, c. 52.

(a) [Rob. on Wills, 404. —Ed.]