Will devising home to testator's four children and his widow that allowed her to "remain" in the home "for as long as she desires" gave her a tenancy in common interest with protection from removal by partition

In an older case that came to my attention, the Massachusetts Supreme Judicial Court held that a will that gave a widow the right to "remain" in the home "for as long as she desires" did not create a life estate when her interest was shared with the decedent's four children. Hershman-Tcherepnin v. Tcherepnin, 891 N.E.2d 194 (Mass. 2008). Rather, the court interpreted the conveyance to create tenancy in common interests shared equally by the five while giving the widow immunity from being forced from the house by partition. Significantly, the court did not consider that restraint on partition to constitute an unreasonable restraint on alienation. However, since she had brought an action to partition the property, she waived the right to be protected from ouster through partition sale.