*49The opinion of the Court was drawn up by
Shepley J.— The petitioner claims to have partition made of a tract of land called the ship yard. It is admitted, that each party exhibited title deeds purporting to convey to him one undivided half of it as derived by mesne conveyances from the devisees of Samuel Cobb. Partition is resisted on the ground, that the devise required, that it should be improved in common. The testator devised to the heirs of his son, Samuel Cobb, deceased, the southwest part of his home estate, “ excepting fifty acres of the northeast part of homestead, together with the house and barn on the same, which I set off to my son William, excepting the ship yard, the privilege thereon to be improved equally between the heirs of my son, Samuel Cobb, aforesaid, deceased, and William Cobb.” By another clause the fifty acres are devised to William Cobb. It is not necessary to decide, whether by these words of the will, “ the privilege thereon to be improved equally between the heirs of my son, Samuel Cobb, aforesaid, deceased, and William Cobb”; the fee of the ship yard was devised ; for, if not, it, would remain in the testator and be devised to the same persons and in the same proportions by the residuary clause in these words: — “It is my will, that all my goods and any part of my estate not before mentioned is to be equally divided between the heirs of my son, Samuel Cobb, deceased, and William Cobb.” There can be no doubt, that by one or the other of these clauses the fee of the ship yard was devised in equal portions to William Cobb and to the heirs of Samuel. The parties respectively have therefore by purchase acquired title to one undivided half of it in fee. And if the argument should be admitted to be correct, that it was the intention of the testator to annex it as a condition to the estate, that it should be improved by them in common, it would not be a valid objection to a partition. Fisher v. Dewerson, 3 Met. 544. Because the partition of the fee would not destroy the right to have it improved in common.
The language used by the testator does not however provide, that the ship yard should be equally improved by William *50and the heirs of Samuel, and their heirs and assigns. It is limited to the improvement to be made by his son and grandsons. He could not be expected to desire to control the use of it after they should cease to be interested in it; and there is no indication of any such desire or intention. A perpetual limitation of the improvement of an estate to one mode and for one purpose binding under all the changes, to which estates in this country are subjected, should not be inferred from the use of language not requiring any such construction, when permitted to have its full and literal effect.
Judgment that partition he made as agreed.