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Effect of Agreement or Will Barring Partition

A partition is the division of real or personal property between co-owners, resulting in the individual ownership of the interests of each owners.  Co-owners can voluntarily partition by mutual agreement.

Generally, a tenant in common of land has the right to partition.   However, this rule is not of universal application.  A party can enter into such agreements with his co-tenant as to prevent him/her from enforcing the right of partition[i].  Partition cannot be made without the consent of all the parties.  An agreement made not to partition a real property during a certain time constitutes a legal defense to an action brought during such time for its partition.  When there is an agreement prohibiting a partition, equitable defenses like estoppel and waiver can be raised in a partition suit[ii].  A co-tenant being a party, s/he is bound by the agreement.  Moreover, a co-tenant deriving a right through an agreement restricting the right to partition is also bound by the agreement.

In a particular case[iii], plaintiff, the former wife of defendant, brought an action for a partition of residential property standing in the names of both parties as joint tenants.  As a part of a divorce action, the parties had entered into a property settlement agreement.  As per the agreement the family home was to remain in the name of the parties so long as the wife did not remarry and so long as the property was occupied by her as a home for herself and the children.  The former wife sought partition of the property while she was still occupying the home with the children and had not remarried.  The court discussed that the agreement constituted a waiver of the right of either party to partition the property so long as the restrictive conditions existed.

However, an agreement making a partition impossible is invalid.  Agreement restricting partition for an unreasonable length of time is always considered invalid and unenforceable.  Courts always favor partition.  In the case of a dispute regarding the enforceability of an agreement containing unreasonable restrictions, courts always enforce the agreement.  An unreasonable restraint on the use and enjoyment of property is contrary to public policy[iv].

A will prohibiting or postponing partition for a reasonable time or until the occurrence of a designated event is valid.  A voluntary partition by the heirs ignoring a testamentary restriction is a matter of private concern.

A testamentary restriction on the right to partition cannot affect:

  • a party claiming under a statute allowing one to renounce the will;
  • a party taking an intestate share of the decedent’s estate; and
  • homestead or dowry exemptions.


However, a court cannot order a partition contrary to the provisions of a will.  The right to partition can be restricted expressly or impliedly through a will.  Courts will not award partition in violation of a condition or a restriction imposed upon the estate by one through whom the one asking partition claims.  A court will not disturb the relative claims of the respective parties named in a will to their distributive share of the land devised.  When the interest in the land devised is that of an entire estate or only an undivided interest, the court must give a decision establishing the right of all interested parties[v].

A court must consider the intention of a testator in making a restriction in the will.  Each will is in a sense unique as the circumstances surrounding each individual testator are themselves unique.  In determining the intention of a testator, the court can refer to the precedent of previously decided cases[vi].  The ultimate objective of the court is to arrive at the intent of the testator as expressed within the four corners of the will.  When ascertained, the intention will be carried into effect insofar as it is not in conflict with positive rules of law[vii].  The intention must be derived from the language found in the instrument rather than from the phrases which might have been used in their place[viii].  Moreover, when a testator directs conversion of property, the property is to be portioned after obtaining the consent of all beneficiaries of the conversion.

[i] Avery v. Payne, 12 Mich. 540 (Mich. 1864).

[ii] De Roulet v. Mitchel, 70 Cal. App. 2d 120, 123 (Cal. App. 1945).

[iii] Miranda v. Miranda, 81 Cal. App. 2d 61, 69 (Cal. App. 1947).

[iv] Haeussler v. Missouri Iron Co., 110 Mo. 188, 195 (Mo. 1892).

[v] Brady v. Paine, 391 Ill. 596, 601 (Ill. 1945).

[vi] In re Williamson’s Estate, 302 Pa. 462, 466 (Pa. 1931).

[vii] Prime’s Petition, 335 Pa. 218 (Pa. 1939).

[viii] In re Scott’s Estate, 313 Pa. 155, 157 (Pa. 1933).

Inside Effect of Agreement or Will Barring Partition