Nye v. Drake

26 Mass. 35

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1829
• Status: Published

Opinion

Per Curiam.

Undoubtedly the return is bad, as it does not appear that Gammons was chosen an appraiser by any party. The officer probably made a mistake, which perhaps might be corrected.

But upon another ground the return is insufficient. If the words of the will are rightly quoted in the facts agreed, we think one half of the farm was devised in severalty to one brother, and the other half in like manner to the other. There are no words signifying a tenancy in common ; such as in quan tity and quality —share and share alike— equally to be divided, &c. but the northwardly half is given to the one, and the southwardly half to the other. Nothing remained but to ascertain the dividing line geographically by a survey and measurement. The one had no interest in the northerly and the other none in the southerly part ; so that they were not seised under the will per mie et per tout, as tenants in common. It follows that the levy under which the tenant to the writ claims, is void, the levy being as upon a tenancy in common, and the demandant must have judgment.¹

1 See Revised Stat. c. 73, § 5.