
    Joseph H. Dallagher, administrator, vs. James Dallagher, appellant.
    Middlesex.
    January 26, 1898.
    June 24, 1898.
    Present: Field, C. J., Allen, Knowlton, Lathrop, & Barker, JJ.
    
      Construction of Deed — Tenants in Common — Sale of Undivided Interest in Real Estate.
    
    Under a deed which conveys in consideration of a stated sum paid by J.,E., and D. a certain parcel of land, with a double cottage thereon, the entire lot being described by metes and bounds, “ unto the said J., E., and D., their heirs and assigns,” and which contains after the description the words, “ It is understood that J. is to have No. 70, and E. and D. No. 72 in said cottage, to have and to hold the above granted premises, with all the privileges and appurtenances thereto belonging, to the said grantees, their heirs and assigns, to their use and behoof forever,” J. takes one undivided third.
    Appeal from a decree of the Probate Court, granting the petition of Joseph H. Dallagher, as administrator of the estate of Bridget Dallagher, for a license to sell one undivided third part of certain real estate for the payment of debts. The appellant, who was a son of the intestate, contended that she was the owner of an undivided half, and that a sale of an undivided third would injure the property, and cause loss to all interested. Hearing before Morton, J., who, with the consent of the parties, reported the case for the consideration of the full court. The facts appear in the opinion.
    
      J. C. Burke & W. S. Marshall, (J. F. Corbett with them,) for the appellant.
    No counsel appeared for the appellee.
   Lathrop, J.

The petitioner’s intestate, Bridget Dallagher, derived her title to the land from the will of her husband, James Dallagher, who devised all his estate to her; and the question is whether he took one third or one half under a deed from Samuel N. Harris, dated March 20, 1871. This deed conveyed, in consideration of $2,100, paid by James Dallagher, Ellen Dallagher, and Eliza Dallagher, a certain parcel of land on Bartlett Street in Lowell, with a double cottage thereon, the entire lot being described by metes and bounds, “ unto the said James, Ellen, and. Eliza Dallagher, their heirs and assigns.” After the description of the premises followed these words: “It is understood that James D. is to have No. 70, and Ellen and Eliza No. 72 in said cottage, to have and to hold the above granted premises, with all the privileges and appurtenances thereto belonging, to the said grantees, their heirs and assigns, to their use and behoof forever.”

If the words, “ It is understood that James D. is to have No. 70, and Ellen and Eliza No. 72 in said cottage,” are omitted, it is plain that the grantees took as tenants in common, and each owned one undivided third in the entire estate. And we are of opinion that these words are too uncertain and ambiguous to change the result. These words might as well refer to occupancy as to the legal title. The report sets forth many facts to show the probable intention of the parties, but, whatever their intention may have been, we are of opinion that the words above quoted are not sufficient to give a title in fee to James Dallagher in one half of the land.

Decree affirmed.  