Gordon v. Pearson

1 Mass. 243

Opinion

Dana, C. J.,

some days after the argument, said that the Court had considered the case, and were unanimously of opinion that the demandants were entitled to recover. On the question of ouster, they thought that a sufficient ouster was stated to maintain the action; and that from the whole partition taken together, and comparing the several parts, it appeared to the Court to be the manifest intention of the distributors that the heirs of Marcy Norcross should take a fee in one moiety of the cellar, as appurtenant to that part of the mansion-house which was set off to them; and therefore that there must be

Judgment for the demandants,

(a)

Note. — It was not expressly stated whether, under the statutes, distributors of the estates of intestates could so divide the estate as to create a new tenancy in common; out it is evident the Court could not have pronounced the judgment they did, unless they had been of opinion that distributors have that power.

[Cummings vs. Wyman, 10 Mass. 464. — Ed ]