Stimpson v. Batterman , 59 Allen 153 ( 1849 )

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.