59 Mass. 153 - Stimpson v. Batterman — 59 Mass. 153

John Stimpson vs. Elizabeth Batterman & others. A testator, having devised the use and improvement of his real estate to his wife, for her life, and the remainder after her decease to his daughter, E. B., and the children of his daughter, M. P., and the children of his daughter, M. L., to them and their heirs and assigns forever, in fee, “ in manner following, namely: one third part thereof to my said daughter, E. B.; one third part thereof to the children of my said daughter, M. P., and the survivor or survivors of them; and one third part thereof to the children and survivor or survivors of them, of my said daughter, M. L.” It was held, that the children of M. L. took vested remainders, as joint tenants, on the death of the testator. This was a petition for partition, submitted to the court of common pleas, and by appeal to this court, upon the following agreed statement of facts : — George Batterman, late of Boston, died in February, 1824, eaving a will which was approved on the 22d of March following, by which he devised the use and improvement of his real estate on Essex street, with the wharf and flats adjoin ing, to his wife for her life, and the remainder after her decease to his daughter, Elizabeth Batterman, and the children of his other daughters, Margaret Prentiss and Mary Lorkin, to them and their heirs and assigns forever, in fee, in the manner ar.d by the terms following: “ One thud part thereof to my caid daughter Elizabeth Batterman; one third part thereof to the children of my said daughter Margaret Prentiss, and the survivor or survivors of them; and one third part thereof to the children and survivor or survivors of them of my said daughter Mary Lorkin.” In case the buildings on the estate should be destroyed or razed, whether by fire, tempest, or otherwise, in the lifetime of his wife, the testator directed that the land, wharf and flats, should be sold to the best advantage, and the proceeds funded at interest, so that the income thereof should be paid quarterly to his wife, during her life, and that after her death the principal should be paid as follows: “ One third part thereof to my said daughter Elizabeth Batterman; one third part thereof to the children of my daughter Margaret Prentiss and the survivors of them, on their arrival at twenty-one years of age ; and one third part thereof to the children of my daughter Mary Lorkin and the survivors of them, on their arrival at twenty-one years of age.” The testator also devised the use and improvement of his farm in Westford to his wife, for her life, and after her decease, as follows : “ One third part thereof to my said daughter Elizabeth Batterman, and one third part thereof to the children of my said daughter Margaret Prentiss, and one third part thereof to the children of my said daughter, Mary Lorkin, to have and to hold the same to them, their heirs and assigns in fee and severalty.” At the time of the making of the will, and at the decease of the testator, his daughter Mary Lorkin had three children living, one of whom, Mary Elizabeth, was married to John Stimpson, the petitioner, on the 12th of June, 1832, by whom she had one child, born on the 4th of September, 1833. Mary Elizabeth Stimpson, the mother, died on the 14th of September, 1833, and her child, on the 2d of October following. At the time of the death of Mary Elizabeth Stimpson and her child, the widow of the testator, and the two remaining children of Mary Lorkin, were living; and the latter survived the testator’s widow, who died before the petition in this case was filed. If the court should be of opinion that Mary Elizabeth Stimpson, the wife of the petitioner, took an estate under the will of George Batterman, which descended to her child, then the petitioner was to have partition; otherwise the petition was to be dismissed. C. B. Goodrich and P. S. Wheelock, for the petitioner. G. G. Boring and B. Mason, for the respondents. — Wilde, J. (majority) Wilde, J. This is a petition for partition of real estate, and the question submitted on an agreed statement of facts is, whether Mary E. Stimpson, wife of the petitioner, took an estate under the will of George Batterman, which descended to her child, on her death. By the will, one third part of the remainder of the estate in question, expectant on the death of the testator’s widow, to whom an estate for life was given, was devised to the children and survivor or survivors of them of his daughter Mary Lorkin. If these children took remainders contingent upon surviving the widow of the testator, then the petitioner’s wife and child took nothing, as they both died before the death of the testator’s widow. But if these children took vested remainders on the death of the testator, as we think they did, then the question is, whether they took as joint tenants or as tenants in common. And we are of opinion, that they took as joint tenants. The devise is to the “ children and survivor or survivors of them,” which are apt words to create such an estate; and taking into consideration all the clauses of the will, wTe cannot doubt that such was the intention of the testator. The result is, that on the death of the petitioner’s wife, her estate vested in the surviving children of Mary Lorkin, and not in the petitioner’s child under whom he claims. Petition dismissed.