
    Dean Jones vs. Jonathan Crane & others.
    Under the- Bev. Sts. c. 59, § 11, and c. 62, § 24, a residuary devise of real estate to “my nephew A. and my niece B. and their heirs and assigns forever ” is of an estate in common and not in joint tenancy; and if one of the devisees dies before the testator, his or her moiety descends to the testator’s heirs at law.
    Petition for partition of real estate included in this devise in the will of Susannah Jones: “ All the residue of my estate of which I shall die seised, both real and personal, I give and bequeath unto my nephew James M. Dean, and my niece Fanny Crane, to hold to them and their heirs and assigns forever.” After the making of the will, and before the death of the testatrix, James M. Dean died, without issue. The heirs at law of the testatrix were her brother the petitioner, Fanny Crane, and Rachel Dean a sister of Fanny Crane. The parties submitted the case above stated to the judgment of the court.
    
      J. E. Sanford, (B. Sanford with him,) for the petitioner.
    
      C. I. Reed, for Fanny Crane,
    cited Prescott v. Prescott, 7 Met. 346; Van Kleeck v. Dutch Church, 20 Wend. 499; 4 Kent Com. (6th ed.) 541-543; Bagwell v. Dry, 1 P. W. 700; Webster v. Webster, 2 P. W. 347; Rev. Sts. c. 59, §§ 10, 11; c. 62, § 3; Earle v. Wood, 8 Cush. 447.
   Metcalf, J.

The petitioner is clearly entitled to partition of the real estate which was devised by Susannah Jones to James M. Dean and Fanny Crane. That devise was to them as tenants in common; it not manifestly appearing, from its tenor, that it was intended to create an estate in joint tenancy. Rev. Sts. c. 59, § 11. By reason of the death of James M. Dean, in the lifetime of the devisor, the devise to him of an undivided moiety lapsed, became intestate property, and descended to the devisor’s heirs at law, to wit, to her brother, Dean Jones, the petitioner, and to Rachel Dean and Fanny Crane, children of her deceased sister; these three being her only heirs at law. Rev. Sts. c. 61, § 1, and c. 62, § 24. Hooper v. Hooper, 9 Cush. 122.

The petition correctly states the fractional parts of the estate to which each of the parties to the petition is entitled. Fanny Crane took, by the devise, one half of the whole that was devised to her and to James M. Dean in common, and took, by descent, one fourth of the other half, viz. five eighths of the whole; Rachel Dean took, by descent, one fourth of that other half, viz. one eighth of the whole; and the petitioner took, by descent, the other two eighths of that half, viz. one fourth of the whole. Judgment for partition.  