
    Benjamin Reed and Jonas Reed versus Samuel Reed.
    A devise of the income of lands is, in effect, a devise of the lands.
    Upon a petition for partition, wherein a case is agreed for the opinion of the Court, no costs are to be taxed, unless it be specially agreed that they sha.l await the decision of the Court.
    This was a petition for partition of certain lands, in which the petitioners each claim to be seised in common and undivided of one seventh part, with other persons to them unknown. Upon general notice having been given in manner required by law, Samuel Reed came in, claimed to be sole seised during the life of Hannah Reed, and traversed the seisin of the petitioners.
    The parties then agreed, in a case stated, that Samuel Reed, late of Littleton, deceased, was seised of the premises in question, and, being so seised, made his last will and testament, in which, after expressing his intention to dispose of all his worldly goods, and authorizing his executor to sell certain lands in Ashburnham, for the payment of his debts, there is the following clause : —
    “ I do give and bequeath to my beloved wife, Hannah Reed, one third part of my personal estate, and the income of my real estate, one third of it, what I own in Littleton and Westford, during her life.”
    Then follow several specific and pecuniary legacies to several of the testator’s children, the latter to be paid in six months from his wife’s decease. The will concludes with the following devise : — “ After the above legacies are paid, remainder of my estate I give to my seven sons, to be equally divided amongst them,” with a provision * that such of them as had been advanced in the testator’s lifetime should allow such advancement as a part of their respective shares. The respondent, Samuel Reed, eldest son of the testator, is appointed executor of the said will, which, after the testator’s decease, was duly proved.
    • The testator left ten children, of whom the two petitioners and the respondent are three. The testator’s widow, named in the will, was still living, and no portion of the real estate of her husband had been set out or assigned to her since his decease.
    If, upon the foregoing facts, the Court should be of opinion that the petitioners were entitled to have partition of any part of the premises described in their petition, the respondent agreed to be defaulted, and that judgment should be rendered for partition of such part as the Court should consider them respectively entitled to; otherwise the petitioners agreed to become nonsuit; and, in either case, it was agreed that the Court should render such judgment for costs as the case might require.
    
      J. Prescott and Abbot,
    for the respondent, contended that there was in the will a constructive devise to the executor, during the life of the widow, in trust to enable him to pay the one third of the income to her.
    The whole will, taken together, seems to show that the testator intended for his widow a better provision than a devise of one third of his lands. The provision is like an annuity charged upon the lands ; or a legacy becoming due yearly, which can be claimed only of the executor; and as he is liable to pay it, he must, as executor, be considered as having an estate in the lands, to enable him to pay it.
    This construction is favored by the expression “ after the above legacies are paid, remainder,” &c. As the word legacy sometimes includes devises of land,  the testator may be considered as referring to the provision for his wife, as well as the preceding personal legacies. If so, it is clear he intended that no partition should be had of his lands, until after her death.
    * But if this construction is untenable, still the petitioners cannot have partition as they have prayed for it. If the executor has not all the lands, the widow must be entitled to one third: for a devise of rents, profits, or income, may be construed a devise of the land.  In such case, the petitioners, not having supported their petition, are not entitled to costs.
    
      Bigelow, for the petitioners,
    moved for leave to alter the prayer of the petition, so as to ask for their several purparties in ,the two thirds only.
    
      Prescott
    
    moved that the widow might now be entered as a respondent.
    
      
      
        Com. Dig. Devise, N. 2. — 5 D. & E. 716.
    
    
      
      
        Com. Dig. Devise, N. 1.
      
    
   By the Court.

The devise is direct to the widow. A devise of the income of lands is the same in its effect as a devise of the lands. The petitioners have, however, mistaken their rights. During the life of their mother, they are entitled to no more than two seventh parts of two thirds of the land described in their petition.

Curia.

Let the widow’s appearance be entered; and let the petitioners alter their petition as moved for.

As to the question of costs referred to us by the parties, the provincial statute giving this process made no provision for costs in any case; and. the statute now in force gives them only upon the determination of an issue either of law or fact. No such issue has been joined in this action. No costs can, therefore, be allowed. If parties, agreeing to cases stated for the opinion of the Court, would have costs await the decision, it must be made part of their agreement. The agreement in the present case is not sufficient, and no costs can be taxed for either party. Let a warrant issue for partition, as prayed for in the amended petition, without costs, 
      
      
        Mass. Laws, vol. ii. 1040.
     
      
      
        Stat. 1786, c. 52.
     
      
      
         [Rob. on Wills, 404. —Ed.]
     