102 Mass. 509 | Mass. | 1869
For the disposition of this case we may assume (what is not very apparent even with the aid of. the evidence offered and rejected,) that the “ fourth share in the fifteenth great lot,” as described in the petition, is the same tract of land with that devised in the will of Elijah Perry as “ what I own in the fifteenth great lot in South Meadow Cedar Swamp.” Assuming also that Elijah Perry had the whole title to said tract; that the descent from his daughter, Mary Atwood, was not broken by devise, and had been cast before the deed of Chapin P. Atwood to the petitioner; and that his deed conveyed whatever interest descended from Mary Atwood to the grantor; the proof still fails to show that Chapin P. Atwood was entitled to the share of the premises which is claimed in the petition, or to any definite share for which judgment could properly be rendered.
The deed to the petitioner purports to convey one “ undivided third part of the fourth share in the fifteenth great lot.” The petitioner claims that the entire tract devised is called “ the fourth share; ” and that he is entitled to one third of the interest devised to Mary Atwood, which would be one twelfth part of the whole lot.
It sufficiently appears that Chapin P. Atwood is a grandchild of Mary Atwood. The petitioner claims, under his deed, only one third of the interest so devised to Mary Atwood. But whether this subdivision is due to other descendants from Mary Atwood in the first or only in the second generation, is not disclosed by the evidence.
It is argued for the petitioner that, having shown that his grantor was in the line of descent from Mary Atwood, he is entitled to recover the share which he claims, unless the respondents show that there was a larger number of heirs among whom her share must be divided ; that the burden of proof in this respect is upon the respondents; that, even if the burden of proof does not shift, the evidence shows that he is entitled to some share of the estate, and therefore to a judgment of partition for that share, whatever it may be, though less than what is claimed in his petition.