Shaw C. J.
delivered the opinion of the Court.
I. The first question arising in the present case is, what was the nature of the estate,- so far as the real estate was concerned, given by Beza Tucker’s will to his wife for life, and at her decease to his children. We have already had occasion to consider the effect of that clause in the will, (in Emerson v. Cutler et al. 14 Pick. 108,) and we have come to the opinion, as to the personal property, that it was á gift to the wife for her life, with an executory bequest over, at her decease, to the five children, that it was contingent and did not vest the property in the legatees till the death of the [497]*497mother, and of course went to those who were surviving at her decease. We were also of opinion, that it was joint, and that it did not come within the provisions of the statute in relation to joint tenancies.
In regard to the real estate, the Court are all of opinion, that it constituted a vested remainder in the children ; and that this clause in the will, by force of St. 1785, c. 62, § 4, must be construed to give an estate to the children as tenants in common. The provision is, that all gifts, &c., of any lands, &.C., made to two or more persons, &c., shall be taken to be estates in common and not in joint tenancy, unless it shall be therein said, that the grantees, feoffees or devisees, shall hold the same lands, &c., jointly, or as joint tenants, or to them and the survivor, or unless other words are used, clearly and manifestly showing it to be the intention, that such lands, &c., should vest and be held as joint estates, and not as estates in common. To construe a gift as of a joint estate, under this statute, it must appear that the distinction between a joint estate and a tenancy in common, was in the mind of the donor, and that he clearly intended to create a joint estate, or that such construction is required in order to carry into effect a declared or manifest intent. The generality of the latter words in the clause, is to be restrained by the character of those which precede ; it is to be construed by the maxim, noscitur a sociis. Any other construction would in effect repeal the statute. If all words, since the statute, were to be construed as showing a manifest intention to give a joint estate within the meaning of the statute, which would be so construed at common law, the statute would be inoperative. In the will in question, there are no words like those put by way of example in the statute, and no words manifesting a clear intent of the testator to create a joint tenancy, having a distinction between that and a tenancy in common, in his mind, and therefore we are all of opinion, that by force of this statute, this clause in the will gave a vested remainder to the five children as tenants in common. Of that third of the real estate therefore, Paulina, at the death of her mother, took one fifth in her own right, one fifth of one fifth as heir of [498]*498Mary, the same as heir of George, and the same as heir of Ellen. It is understood, that Margaret was of age and made a will, so executed as to pass real estate, and therefore her one fifth, being a vested estate, passed by her will to her devisee.
2. The next material question is, whether upon the death of Mary Tucker under age and not having been married, her mother took a share of her estate, with the brother and sisters ; and the Court are of opinion that she did.
Whatever doubts there may have been under the provisions of the provincial statutes, and the statute of 1783, c. 36, regulating the descent of estates, many of which provisions were obscure and ambiguous, we think the case is clear, under the statute now in force and which was in force at the time of Mary’s decease. St. 1805, c. 90, § 1. [Revised Stat. c. 61, § l.]
This statute provides, that when any person dies seised of any estate, not having lawfully devised the same, if he have no issue nor father, the same shall descend in equal shares to the intestate’s mother, if any, and to his brothers and sisters, and the children of any deceased brother or sister by right of representation. This provision precisely embraces the case of Mary, and furnishes the rule governing the descent of her estate, unless it is qualified and controlled by the subsequent proviso, which is to the following effect : Provided, however, that when any child shall die under age, not having been married, his share of the inheritance, that came from his father or mother, shall descend in equal shares to his father’s or mother’s other children then living respectively, and to the issue of such other children as are then dead, if any, by right of representation. And we are of opinion, that the estate which this daughter took by devise from her father cannot be considered as a share of the inheritance, the descent of which was intended to be regulated by this clause of the statute.
" The purpose of the whole section is to regulate the descent of intestate estate. The last clause cited, the proviso, does not make a rule for a separate and distinct case, but only modifies one of the rules under given circumstan[499]*499ces. It is an exception from the generality of the antecedent rule. The whole purpose is the descent of intestate estate ; and we think the effect is, that where upon the descent of an estate to children, one of them shall happen to die in infancy, that is, at any time before arriving at the age, at which, by law, he has the power of disposing of his estate, and before he has by marriage contracted obligations and established new connexions which change his relative situation to others, his share of the inheritance, that is, his portion of the intestate estate, for the descent of which this statute is now providing, shall go just in the same manner as if such child had died in the lifetime of the ancestor, or, in other words, to those who would have taken the same share if such child had not existed. It directs that it shall go to the other children of the parent from whom it came, which it would have done, had the child so dying not been in existence at the time of the decease of such parent. It is rather giving a new destination to that portion of the parent’s estate, which has in some measure failed to accomplish the design of the legislature by the premature death of such child, than to provide a new and distinct rule of distribution for such child’s own estate. This clause therefore being confined to the case of descent of the share of the inheritance, thus coming by descent, it would be a forced construction to hold that it extends to estate which a devisee takes by will, and which is by law considered to be an estate by purchase. It would seem to be repugnant alike to the technical meaning and legal effect of the words, “ share of the inheritance,” and to the general intent and purpose of the statute. The descent of the estate of Mary Tucker therefore is regulated by the general provision of the statute ; this is not restrained or qualified by the proviso and of course the mother took a share as heir of her daughter, equally with the surviving brother and sisters. This question is not raised in regard to either of the others, because George was of full age, Ellen had been married, and Margaret was of full age, at the time of their respective deaths.
3. The only remaining question is, whether the respon[500]
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Shaw C. J.
delivered the opinion of the Court.
I. The first question arising in the present case is, what was the nature of the estate,- so far as the real estate was concerned, given by Beza Tucker’s will to his wife for life, and at her decease to his children. We have already had occasion to consider the effect of that clause in the will, (in Emerson v. Cutler et al. 14 Pick. 108,) and we have come to the opinion, as to the personal property, that it was á gift to the wife for her life, with an executory bequest over, at her decease, to the five children, that it was contingent and did not vest the property in the legatees till the death of the [497]*497mother, and of course went to those who were surviving at her decease. We were also of opinion, that it was joint, and that it did not come within the provisions of the statute in relation to joint tenancies.
In regard to the real estate, the Court are all of opinion, that it constituted a vested remainder in the children ; and that this clause in the will, by force of St. 1785, c. 62, § 4, must be construed to give an estate to the children as tenants in common. The provision is, that all gifts, &c., of any lands, &.C., made to two or more persons, &c., shall be taken to be estates in common and not in joint tenancy, unless it shall be therein said, that the grantees, feoffees or devisees, shall hold the same lands, &c., jointly, or as joint tenants, or to them and the survivor, or unless other words are used, clearly and manifestly showing it to be the intention, that such lands, &c., should vest and be held as joint estates, and not as estates in common. To construe a gift as of a joint estate, under this statute, it must appear that the distinction between a joint estate and a tenancy in common, was in the mind of the donor, and that he clearly intended to create a joint estate, or that such construction is required in order to carry into effect a declared or manifest intent. The generality of the latter words in the clause, is to be restrained by the character of those which precede ; it is to be construed by the maxim, noscitur a sociis. Any other construction would in effect repeal the statute. If all words, since the statute, were to be construed as showing a manifest intention to give a joint estate within the meaning of the statute, which would be so construed at common law, the statute would be inoperative. In the will in question, there are no words like those put by way of example in the statute, and no words manifesting a clear intent of the testator to create a joint tenancy, having a distinction between that and a tenancy in common, in his mind, and therefore we are all of opinion, that by force of this statute, this clause in the will gave a vested remainder to the five children as tenants in common. Of that third of the real estate therefore, Paulina, at the death of her mother, took one fifth in her own right, one fifth of one fifth as heir of [498]*498Mary, the same as heir of George, and the same as heir of Ellen. It is understood, that Margaret was of age and made a will, so executed as to pass real estate, and therefore her one fifth, being a vested estate, passed by her will to her devisee.
2. The next material question is, whether upon the death of Mary Tucker under age and not having been married, her mother took a share of her estate, with the brother and sisters ; and the Court are of opinion that she did.
Whatever doubts there may have been under the provisions of the provincial statutes, and the statute of 1783, c. 36, regulating the descent of estates, many of which provisions were obscure and ambiguous, we think the case is clear, under the statute now in force and which was in force at the time of Mary’s decease. St. 1805, c. 90, § 1. [Revised Stat. c. 61, § l.]
This statute provides, that when any person dies seised of any estate, not having lawfully devised the same, if he have no issue nor father, the same shall descend in equal shares to the intestate’s mother, if any, and to his brothers and sisters, and the children of any deceased brother or sister by right of representation. This provision precisely embraces the case of Mary, and furnishes the rule governing the descent of her estate, unless it is qualified and controlled by the subsequent proviso, which is to the following effect : Provided, however, that when any child shall die under age, not having been married, his share of the inheritance, that came from his father or mother, shall descend in equal shares to his father’s or mother’s other children then living respectively, and to the issue of such other children as are then dead, if any, by right of representation. And we are of opinion, that the estate which this daughter took by devise from her father cannot be considered as a share of the inheritance, the descent of which was intended to be regulated by this clause of the statute.
" The purpose of the whole section is to regulate the descent of intestate estate. The last clause cited, the proviso, does not make a rule for a separate and distinct case, but only modifies one of the rules under given circumstan[499]*499ces. It is an exception from the generality of the antecedent rule. The whole purpose is the descent of intestate estate ; and we think the effect is, that where upon the descent of an estate to children, one of them shall happen to die in infancy, that is, at any time before arriving at the age, at which, by law, he has the power of disposing of his estate, and before he has by marriage contracted obligations and established new connexions which change his relative situation to others, his share of the inheritance, that is, his portion of the intestate estate, for the descent of which this statute is now providing, shall go just in the same manner as if such child had died in the lifetime of the ancestor, or, in other words, to those who would have taken the same share if such child had not existed. It directs that it shall go to the other children of the parent from whom it came, which it would have done, had the child so dying not been in existence at the time of the decease of such parent. It is rather giving a new destination to that portion of the parent’s estate, which has in some measure failed to accomplish the design of the legislature by the premature death of such child, than to provide a new and distinct rule of distribution for such child’s own estate. This clause therefore being confined to the case of descent of the share of the inheritance, thus coming by descent, it would be a forced construction to hold that it extends to estate which a devisee takes by will, and which is by law considered to be an estate by purchase. It would seem to be repugnant alike to the technical meaning and legal effect of the words, “ share of the inheritance,” and to the general intent and purpose of the statute. The descent of the estate of Mary Tucker therefore is regulated by the general provision of the statute ; this is not restrained or qualified by the proviso and of course the mother took a share as heir of her daughter, equally with the surviving brother and sisters. This question is not raised in regard to either of the others, because George was of full age, Ellen had been married, and Margaret was of full age, at the time of their respective deaths.
3. The only remaining question is, whether the respon[500]*500dent Kent, who has survived his wife, Margaret, is now precluded from claiming a share of the income of the real estate, which descended to his wife from her daughter Mary, from the time of her decease to the time of the decease of the mother, in consequence of the fact, that after the death of Mary and George, Kent and his wife presented a petition for partition of her share of the- estate which descended to her from her son George, who died over twenty-one, not claiming any share by descent from her daughter Mary, who died under twenty-one. This was probably done under a mistaken belief, that, by law, the mother did not take a share in the estate of this daughter. This partition is relied upon as in the nature of an estoppel, and the question is whether it can avail.
It is obvious that this question is now of no importance as it regards the land itself, because if a share of this estate did vest in the mother, she afterwards died intestate not having had issue by her surviving husband, so that, on her decease, this share of the estate descended to the plaintiff Paulina, then her only surviving child and heir at law. But in regard to the profits, it may still be a question between the plaintiffs and the defendant Kent.
It was stated on the argument, that by the answers the defendants submit to account for the rents and profits according to the rights of the parties. If so, we have no doubt, that Kent is eniitled to this share of the rents and profits of that portion of his wife’s real estate which descended to her from her daughter Mary, so far as he has not waived the same by some agreement, or by his answers in this or any former case.
But without relying on this submission, we are of opinion, that the partition did not preclude Kent from claiming these rents. The objection is in nature of an estoppel, and is tp be construed strictly, and not extended by any equitable construction. Whatever effect this partition might have had upon a real action between the same parties on the question of title, we think it has none upon the equitable rights of the parties. It has been frequently considered, that partition affects only the right of possession, and is not to be taken as evidence upon the right of property. Here, by consen* [501]*501oí all parties, the real estate was permitted to remain in the possession of the respondent Cutler, the executor of the will and the guardian of several of the children, and he must be deemed to have received the rents and profits for those beneficially entitled to them. As Kent, during the coverture, was entitled to the beneficial use and possession of a share of the real estate of his wife, which descended to her from her daughter Mary, we are of opinion, that in equity Cutler ought to account for that proportion of the rents and profits to Kent, and of course that, to this extent, the plaintiffs are not entitled.