
    Ebenezer Wells versus Elizabeth Prince.
    A devise for life, remainder in fee. — Tenant for life neglected to enter for more than twenty years, and died. It was holden that, although this neglect of entering amounted to a refusal of the devise, and so a right of entry accrued to him in remainder after the expiration of the twenty years, yet another right of entry accrued to him at the death of tenant for life.
    This was a petition for partition of certain lands in Boston, on which a verdict was taken for the petitioner, at the last March term in this county, subject to the opinion of the Court upon the following point, viz.: —
    
      Francis Wells, being seised of the lands in question, devised all his real estate to his wife, Susannah, for her life, remainder to the petitioner and others, and died in 1766. The said Susannah never entered on the lands, of which partition is prayed, and she died in the year 1793. The petitioner entered in 1808. The question reserved was, whether his right oí entry, if any he had, was not barred.
    
      Jackson for the respondent.
    The right of entry accrues to those in remainder, upon the determination of the estate of tenant for life, in whatever manner that determination arises. In this case, the right of the devisee for life to enter, expired, and was gone in twenty years from the death of the testator; the right of those in remainder then accrued, and by twenty years’ neglect to enter on their part, the statute also barred them. 
    
    
      Amory for the petitioner.
    The non-entry of the tenant for life, for twenty years, did not amount to a refusal to * accept the devise; nor, if it did, would her refusal give a right of entry to those in remainder; and although such right might accrue to the remainder man, it would not follow that he is bound to enter within twenty years; he may renounce a provision of law made only for his benefit. Until the entry of devisee for life, the estate vests in the heir of the devisor.
    Every grant being presumed to be beneficial, the law presumes an acceptance of it. A refusal must be evidenced by some positive and direct act, — not a mere matter of inference. The consequence of such a refusal, indeed, makes the devise void as to tenant for life, but does not go to destroy the estate of him in remainder, who cannot suffer by the neglect of tenant for life, and who can know nothing of such implied refusal, since an entry may always be made without his knowledge. If the estate of tenant for life had been forfeited for any positive act of her own, the remainder would not have been affected. 
    
    
      
       1 H. Black. 1. — Bac. Abr. Title Remainder and Reversion E. — 1 Co. 101, 154. — 2 Leon. 147. — Cro. Eliz. 423. — 1 Dyer, 126. — Plowd. 414. — 2 Mod. Rep. 7.
    
    
      
       4 Johns. Rep. 390.
    
   By the Court.

The defence in this case is, that the devisee for life having never entered, her refusal to accept the devise is to be presumed; and then the right of entry of the petitioner or remainder man having accrued immediately, he was bound to enter within twenty years; and, having failed so to enter, his right of entry is gone, without which he cannot maintain this process.

That those in remainder might have entered immediately on the refusal of the devisee for life to accept the devise, is true. But one may have different rights of entry; and although the devisee for life refuses to accept the estate devised, and the remainder-man thereby acquires an immediate right of entry, yet he is not obliged to avail himself of his right, so accruing; but he may enter after his second right accrues by the death of the tenant for life. The petitioner, then, had not lost his right of entry on the death of Susannah Wells, and he is entitled to partition of the premises. Let the interlocutory judgment be entered, quad partitio fiat, 
      
       [ Wallingford vs. Hearl, 15 Mass. Rep. 471. — And vide Parsons vs. Wells, S. C 4 Mass. Rep. 64. — Jenk. C. R. 254. — Ed.]
     