In Kingman v. Kingman (121 Mass. 249) the testator gave to his daughter "the use and improvement of so much of my house as she may need during her life, and also a privilege at the fire, which I have made for my wife, while they live together." The Supreme Judicial Court of Massachusetts held that the daughter took an interest in the nature of an easement or servitude under this provision of her father's will. I think that Carrie Sheldon took a similar easement or servitude under the will in the present case. As our brother CUDDEBACK has correctly said, equity will not award partition in violation of a condition or restriction imposed upon the estate by one through whom a party claims. I think such a condition is imposed by the second paragraph of the will. Carrie was to have a home and part in the house on the farm that her father owned at his decease. The facts proved upon the trial show that she can obtain adequate support by remaining on the farm and living in the house; but that if the property is sold the income from the proceeds will not suffice to support her. Under these circumstances in order to carry out the intention of the testator and give the daughter the support which he clearly contemplated, it is essential that the farm should remain in *Page 352 her possession and that she should live there. Such possession on her part and residence there are inconsistent with the idea of any partition and sale of the premises during her lifetime unless such sale is made with her consent. If she has the right, as I think she has, to remain there and receive all the rents and profits to her own use as long as she lives, it is unreasonable to suppose that any bidder at a partition sale would give anything for the property except what it might be worth after the termination of the easement or servitude in her favor. This value would be so difficult to ascertain that it seems to me preferable to hold that the nature of the charge upon the estate precludes a partition during her lifetime without the daughter's consent. If this view is correct the judgment should be affirmed instead of being reversed.
HISCOCK, COLLIN, HOGAN, CARDOZO and SEABURY, JJ., concur with CUDDEBACK, J.; WILLARD BARTLETT, Ch. J., reads dissenting memorandum.
Judgment reversed, etc.