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Smith r. King.

“Sec. 7. If any person not named in the petition shall appear and plead as a defendant, or allege any title to any part of the premises, the petitioner may reply that such person has no estate in the premises, and pray judgment if he shall be admitted to object to the petition, and the petitioner may likewise reply in answer to such plea, any other matter in manner as if he had not disputed such person's right to appear.

“SEC. 8. If it shall appear that such person has no estate in the lands, the matter of his plea shall be no further inquired of.

“SEC. 9. If upon trial of any issue, or upon default, or by confession or consent of parties, it shall appear that partition ought to be made, the court shall award an interlocutory judgment that partition be made to parties who may desire the same, specifying therein the share assigned to each, and taking into consideration advancements to heirs of a person dying intestate; and the residue of the premises shall remain for the persons entitled thereto, subject to a future partition.

“SEC. 15. The commissioners shall make to the court and acknowledge in open court, their report, specifying by divisions, or by metes and bounds, each share.

“SEC. 16. Such report, if confirmed by the court, shall be spread upon the order book, and judgment of partition be rendered accordingly. And such report and judgment shall also be recorded, in a separate book kept for that purpose.

“SEC. 29. Upon showing sufficient cause, any person not served with summons, may, within one year after such partition is confirmed, appear and open the proceedings and obtain a review thereof, and also any person of unsound mind, or an infant whose guardian did not attend and approve such partition, may, within one year after the removal of his disability, have a review of such partition.”

Under section 7 the original petitioners may dispute the claim of any one not named in the petition who appears to assert an interest, and as between such person and the petitioners the determination of the issue will doubtless be conclusive; but we do not agree to the proposition of counsel

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that the petitioner represents or has “ authority to litigate for the interest of the true owners."

The decree in partition doubtless settles the rights of the petitioners as between themselves and as against the defendants named in the petition and served with process, and also the rights of the defendants as between themselves, perhaps, if they appear and it is done without objection; but it does not follow that a person not named in the petition may come in and claim the share of a defendant who is named, and who does not appear, and obtain a valid decree establishing his claim. There is nothing in the statute, and certainly not in the general rules of procedure, to warrant such a conclusion.

Counsel for the appellant insist further that when Mrs. Harris and Mrs. Ketchum made the conveyances under which the appellee claims title, they had no vested interest, and that their deeds were not operative upon the contingent interests which afterwards became in them vested rights, and were transferred to the appellant. The demurrer, however, does not raise the question. The averments of the original complaint show that the

conveyances under which the appellee claimed were made after the rights of the grantors had become absolute, and, except for the copies of deeds set out in the amendment to the complaint, there is nothing to indicate the contrary. But, under numerous decisions, these exhibits can not be regarded in determining the meaning and sufficiency of the averments of the pleading with which they are set out. These deeds may have been the evidence of the appellee's title, but they were not the foundation of the action. And, even if they were, their dates would not control the allegation of the pleading as to the time when they were executed. If, therefore, the appellant would have presented the question of the power of Mrs. Harris and Mrs. Ketchum to convey, before the happening of the event on which their rights became perfect, and of the effect of the deeds which were made, they should have set up the facts in a special answer. It was enough for the appellee to have averred his title generally, and, as we have

White et al. v. Allen.

seen, the particular averments contained in the amendment are not such as to destroy the force of the general averment contained in the original pleading.

Judgment affirmed, with costs.

No. 8377.

WHITE ET AL. V. ALLEN.

Will.-Construction.- Tenants in Common. -- Partition.—A will contained the

following clauses: “First. I give and bequeath to my son, N. T.,” certain real estate, describing it. “Second. * * To my daughter, A. A., twenty-five dollars in money. Third. To my beloved wife, R. T., all my land or real estate, of every description whatever, that I own at my death (not devised or given away in this will); also, all my personal property, to have, use and control during all her natural lifetime, and after her death to my six children, # except that my son, N. T., is to have an equal share in the personal property with the other children ; if any of my said seven children shall die without bodily heirs, then the others to have the share or shares, both real and

personal, of the deceased ones, equally divided.” Held, that the third clause does not affect any property disposed of by the

first and second clauses. Held, also, the testator having died leaving a widow and eight chil

dren, that upon the death of the widow and N. T. without issue, and subsequently the death of M. T., a son named in the will, leaving an only child, J. T., the land devised by the first clause of the will to N. T. belongs to A. A., J. T., the daughter of M. T., and the brothers and sisters of N. T. as tenants in common, each entitled to a one-seventh part thereof.

From the Perry Circuit Court.
C. H. Mason, for appellants.
C. A. De Bruler, E. R. Hatfield and W. Henning, for appellee.

BICKNELL, C. C.—The appellee, a daughter of Nathaniel H. Thomas, brought this suit for partition against the appellants, who were brothers and sisters, and the only child of her deceased brother. The complaint demanded partition

White et al. v. Allen.

of fifty-six acres of land, and twenty-three and three-quarters acres of land; the appellee claimed to be entitled to one-seventh part of said lands. There was a trial by the court, followed by a finding and judgment for the appellee, and an appeal to this court.

The parties agree that the only question in the case arises upon the construction of the will of said Nathaniel H. Thomas. The appellants say in their brief: “If the court below did not err in its judgment in construing the will, there is no error worthy of any attention, unless the court shall think the language of the will sufficiently ambiguous and uncertain to authorize the admission of the parol testimony offered by the appellants to explain it, and rejected by the court.” There was no ambiguity or uncertainty in the will, and the parol testimony was properly excluded.

The appellee claimed that the lands aforesaid were devised by said will to her brother Nathaniel, and upon his death descended so that the appellee and the appellants became tenants in common, each entitled to one-seventh part thereof.

The appellants claimed that said lands were not devised to Nathaniel, the son, in fee, but in case of his death were to go to the appellants, and that the appellee was entitled to nothing under the will except a legacy of twenty-five dollars.

It was agreed that Nathaniel H. Thomas died on January 23d, 1879, leaving a widow Rebecca, and eight children, to wit: the appellants, Lydia A. White, George W. Thomas, Columbus Thomas, Clemency A. Harris, Eliza J. Roff, and two others, viz., Nathaniel and Marion J.

The will contained the following provisions:

“First. I give and bequeath to my son, Nathaniel Thomas," —then follows a description by metes and bounds of both of the aforesaid tracts of land.

“Second. I give and bequeath to my daughter, Amanda Allen, twenty-five dollars in money.” This was a legacy to the appellee, whose name was Sarah Amanda Allen.

VOL. 81.-15

White ct al. 1. Allen.

“Third. I give and bequeath to my beloved wife, Rebecca Thomas, all my land or real estate, of every description whatever, that I own at my death (not devised or given away in this will); also, all my personal property, including money, notes, accounts and effects, of whatever name or nature (except what is given and bequeathed in this will), to have, use and control during all her natural lifetime, and after her death all of said property that yet remains, both real and personal, I do hereby give and bequeath,” etc.

These words, "after her death all of said property that yet remains, both real and personal,” refer exclusively to the property just mentioned in said third clause, and not to any other property elsewhere in the will disposed of. The use of the words "after her death" shows that the reference is to property which had been hers for life, and not to property given to others absolutely in the first and second clauses of the will, and in which she had no estate for life.

The will means that the real and personal property, given to the wife for life, shall, after her death, go to others, and the will proceeds thus: “ To my six children, to wit, Marion J. Thomas, Lydia Ann White, George W. Thomas, Columbus Thomas, Clemency Ann Harris, and Eliza J. Roff, to be equally divided between them six, share and share alike.” Thus far the appellee and the son, Nathaniel, are cut off from any participation in the property given to their mother for life; but the will proceeds: “except that my son, Nathaniel Thomas, is to have an equal share in the personal property with the other children, except what Mary Gilbert now owes me, he is not to have any share in that.” Here the will gives the son, Nathaniel, an equal interest, after his mother's death, in the personal property she had for life, but not in the real estate she had for life. And then the will says: “If any of my said seven children,” that is, the six named in this third clause of the will, and Nathaniel, leaving out the appellee, naming the seven only who are to take the “said property,” that is, the property given to their mother for life, “shall die without

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