In a devise of real estate by a testator to his three daughters, a proviso "that it shall require the consent of all, or of those who shall survive in the event of the decease of one, to sell or lease said real estate," does not deprive the devisees of the right to have partition of the estate for the purpose of occupation and enjoyment.
CLARK, J.
Josiah Sawyer devised certain real estate, said to be his homestead, to his three daughters, the parties to this action, to share equally, to them and their respective heirs and assigns forever, subject to this restriction: "provided, however, that no sale or leasing of the real estate shall be made without the joint action of all my daughters while living, and meaning that it shall be necessary for them to agree; and that it shall require the consent of all, or of those who shall survive in the event of the decease of one, to sell or lease said real estate."
The only question raised by the demurrer is, whether the plaintiff is entitled to partition. The defendants object that partition cannot be had, claiming that the estate created by the devise is a joint estate for life, with several inheritances. 4 Kent 357. Without determining this question, and conceding for present purposes that the defendant's contention as to the nature of the estate is correct, we think the plaintiff is entitled to partition. G. L., c. 247, s. 1. The condition of the devise relates to the sale or leasing of the land, and not to its use, occupation, or enjoyment. There is nothing in the language of the proviso indicating an intention on the part of the testator to prohibit a division of the estate among the devisees for the purpose of enjoyment, or to restrict them to a use and occupation in common and undivided; and the plaintiff entitled to partition.
Demurrer overruled.
ALLEN, J., did not sit: the others concurred.