
    Elihu Bates and Mary, his Wife, Petitioners for Partition, versus Nathan Webb and Others.
    Une devised his estate to his wife, “ to be for her own comfort and the support of my children who are minors, during the time she remains my widow, without any disturbance, 8f c., from any of my children; and in case she alters her condition by marriage, then to be divided as the law directs, each child to receive an equal portion.”— Held that the children took a vested remainder.
    The petitioners prayed for one fifth part of the land described in their petition, to be set off to them in severalty in right of said Mary.
    
    The case was submitted to the Court on the following facts agreed: —
    
      John Leach, late of Boston, died on the tenth of June, 1799, seised of the premises, having on the fifth of May, 1788, by his last will and testament, duly executed, and afterwards proved and allowed, devised all his estate as follows, viz.: —“ And as to my worldly estate, real, personal, * and mixed, (after all my just debts and funeral charges are fully paid and satisfied,) I give, devise, and bequeath the same to my wife Sarah, to be for her own comfort, and the support of my children who are minors, during the time she remains my widow, without any disturbance, hinderance, or molestation from any of my children ; and in case she alters her condition by marriage, then my said estate, real, personal, and mixed, I will shall be divided as the laws directs; each child to receive an equal portion, without a double portion to either.
    The said Sarah Leach survived her husband, was not afterwards married, and died intestate on the 25th of March, 1811. The said John Leach left ten children by his said wife, of whom the petitioner Mary is one. Of the others one died without issue, and four leaving issue still living, during the life of their mother; the remaining four being still in full life.
    Upon these facts it was agreed by the parties, that if the Court should be of opinion, that the petitioners, in right of said Mary, are entitled to one fifth part of the premises, partition should be made accordingly; and if the Court should be of opinion that the petitioners are entitled to one ninth part, or to any other portion of the premises, partition should be so made; and in either case the petitioners’ proportion of the premises be set off to them.
    
      Sullivan, for the petitioners,
    seemed satisfied that all the children took a vested remainder at the death of their father ; and of course that the petitioners could demand no more than one ninth part.
    
      Jackson for the respondents.
   By the Court.

The petitioners are seised in fee simple of a ninth part only of the estate devised, and let a warrant issue to set off the same to them in severalty.  