
    Daniel Wild, and Sarah, his Wife, Petitioners for Partition, versus James Brewer.
    
      (February Term, 1797,
    
      in Suffolk.)
    
    A testator devises estate to his grandchildren, “ children of my daughter S.f but gives no legacy to such daughter; held, that she was not entitled to a portion of the testator’s estate, in the same manner as if he had died intestate.
    The petition alleges that John Brewer, on the 30th day of November, A. D. 1791, was seised in fee simple of the premises described in the petition, “ and afterwards, on the-day of -, died seised thereof, leaving the said Sarah, and James Brewer, the respondent, his only children and heirs at law, not having given or bequeathed to said Sarah any legacy by any last will and testament, — whereby, and by virtue of the law in such case provided, the said Daniel and Sarah, in her right, became entitled te have one undivided moiety of the premises assigned to them; wherefore they pray for partition,” &c.
    The following agreement was made between the parties in this cause:—
    “ John Brewer, being seised of the real estate in Boston mentioned in his will, made his last will and testament, and among other things devised as follows, viz., ‘ I give and bequeath to my beloved wife, Anne Brewer, all my personal estate forever, for her to enjoy.and dispose as she shall see fit after my decease; also I give and bequeath to her all that piece or parcel of land, with the workshop thereon standing, which I bought of Richard Thurston, and is bounded, &c., forever, for her to dispose of according to her mind and pleasure ; also the * income and [ * 571 ] improvement of the remainder of my real estate for and during her natural life ; and at her decease I will and order that the same be divided among my grandchildren, or as many of them as shall be then living, viz.: To James Brewer, Henry Brewer, Thomas Brewer, Jane Brewer, and Dorcas Brewer, children of my son James Brewer, — and to Robert Peck, William Peck, Sarah Peck, John Peck, and Anne Brewer Peck, children of my daughter Sarah, — in equal parts or portions forever, for them to improve and dispose of as they may see fit.’ And the said John Brewer, the testator, afterwards died seised of the estate by him devised as aforesaid, and leaving the said Anne Brewer his widow, and the said James Brewer and Sarah his only children and heirs at law, not having given or bequeathed to said Sarah or to said James any legacy or portion, and without having mentioned their names in any other manner than is above recited ; said Sarah not having had an equal proportion of said deceased’s estate bestowed on her in the deceased’s lifetime.
    “ Now, if the Court are of opinion that the law is such that the said Sarah is entitled to have a portion of said deceased’s estate, in the same manner as if he had died intestate, then the parties agree that judgment be rendered for the partition thereof, and for the assignment of her part in severalty in that part thereof not specifically devised to Anne Brewer ; otherwise, they agree that said petition be dismissed.”
    
      H. G. Otis for petitioners.
    
      T. Parsons for respondent.
   Judgment. — And after a full hearing of the parties by their counsel, it appearing to the Court, upon the state of facts, that Sarah, the wife of said Daniel, petitioner as aforesaid, is not entitled to have a portion of the estate of the said John Brewer, deceased, in the same manner as if he had died intestate — it is therefore considered by the Court here that the said petition be dismissed, and that the respondent recover against the petitioners costs, taxed at, &c.

Vide Mass. Statutes, February 6, 1784, An Act pre [ *572 ] scribing the * manner of devising lands, tenements, and hereditaments.” sec. 8. See, also, Mass. Statutes, 12 Will. 3, c. 7.

Note.— The Chief Justice, in citing this case of Wild Ux. vs. Brewer, in the case of Church vs. Crocker, at Boston, said he well remembered it to have been thoroughly argued. 
      
      
         Church vs. Crocker, 3 Mass. Rep. 17. — Terry & Al. vs. Foster & Al. 1 Mass Rep. 146. — Wilder vs. Goss, 14 Mass. Rep. 357.
     