Opinion
December Term, 1827.
From Lincoln.
A devisor devised so much of his lands as his wife could cultivate, to her during her life or widowhood, and that his executors should rent out the residue of his cleared land until his children came of age, to take it in possession. The life estate having expired during the nonage of some of her children, it was held that those of age had a right to an immediate partition of the whole of the land devised.
THIS was a petition for partition of land devised by Mason Huson, deceased, to his six children.
Wilson for the demandant.
No counsel for the defendants.
The will of Mason Huson was attached to the petition and made part of it. By it the land of which partition was demanded was devised as follows: "I will that my wife, Mary Huson, shall have such a part of my land as she with her children and negroes, which are left to her, can attend under crop annually, during her natural life or widowhood, and the balance of clear land I will that it be rented out annually by my executors until my children come of age, to take it into their own possession."
The petition charged that Mary Huson, the wife of the devisor, had married; that the plaintiff had purchased the interest of Elizabeth Huson, one of the devisees, and that Ridley Huson, another of them, had died intestate after the devisor.
No answer or plea was filed, but from the orders made in the cause in the court below it appeared that some of the devisees were infants when the petition was filed.
On the last circuit the cause was heard before his Honor, Judge Norwood, upon the motion of the demandant for a writ of (349) partition, when his Honor, thinking that the devisor had carved out of the inheritance a term for years, which had not expired, and which vested in his executors, in trust for the maintenance of his children until the full age of the youngest, dismissed the petition; from which the demandant appealed.
The clause of the will on which the question in this case turns is as follows: "I will that my wife, Mary Huson, shall have such a part of my land as she with her children and negroes, which are left to her, can attend under crop annually, during her natural life or widowhood; and the balance of clear land I will that it be rented out by my executors until my children come of age, to take it into their own possession." It is stated that Mary Huson is since married; and I suppose it may be taken for granted that Elizabeth Huson was of full age when the petitioner purchased her interest in the land in question. Whether Ridley Huson died before or since that purchase is not stated. If since, the petitioner has no right to his share of the land. But I suppose the real question intended to be submitted is whether the petitioner has a present right to have partition, consistently with that clause of the will before recited.
The reason why the devisor directed the land to be rented out until his children came of age was that before that time they were presumed not to have sufficient capacity to manage it. Now, there was no one time when all the children came of age; that event happened at different periods. When one of them came of age, he or she thereby acquired capacity to manage his or her property, and that one had no concern in point of interest whether the others were minors or not. The land was to be divided amongst them, and it made no difference with the minors whether the one that was of age managed his property or not. It is not stated in the case that the land undivided yielded (350) more to each claimant than it would do when divided. Nor is there an appropriation made of the rents and profits of the land for any particular purpose, or for any particular time, so as to prevent a partition as the children severally arrived at maturity. Again, suppose one of them to be of age, and others of them of very tender years; it may be ten or fifteen years, or perhaps a longer time, before the one of age could be let into the possession of his land, although the infants would not be at all benefited by a continuance of the tenancy in common. Much injury might, in such a case, be done to the elder branches of the family, and no possible benefit could result to the younger. I therefore think the petitioner has a right, at the present time, to have partition made as prayed for in the petition.
PER CURIAM. Judgment reversed, and judgment for the demandant that partition be made.
Approved: Hoyle v. Stowe, 13 N.C. 318.