Opinion by
Mr. Justice Mestrezat,
It is settled in this jurisdiction that an adverse holding by one tenant in common for any length of time will defeat an action for partition. Neither the title to nor possession of real estate can be judicially determined in a proceeding for partition, and those who claim either must assert it in an appropriate proceeding on the law side of the court. Partition of real estate can only be had where the parties hold together and not adversely. When, therefore, a proceeding is instituted in the Orphans’ Court for partition of real estate alleged to be owned by tenants in common, the party in possession of the premises must aver that the title is in him or that he is and has been in possession of the premises holding adversely to the claimant for partition, and set up such facts as will, if established, support his claim. *437The petitioner is then put to his ejectment, and the court should suspend the proceedings in partition until the title has been judicially determined to be in him and he is put in possession of his interest in the real estate.
The question of jurisdiction should be raised at the beginning of the proceedings in partition. It should not be left to inference but should be distinctly averred so that the opposite party may have an opportunity and be prepared to meet it. Here, the appellants did not aver that they had title to and were in possession of the premises holding adversely to the appellees. They simply ask the court to infer the fact from certain statements in the petition and answer. We do not think this is sufficient. If they intended to rely upon ousting the jurisdiction of the court they should have pleaded distinctly the want of such jurisdiction and made it an issue in the case. One who seeks to oust the jurisdiction of the court in a proceeding in partition on the ground of want of title or an adverse holding of the premises must distinctly plead it, otherwise he will be regarded as having waived his right to assert such defense. The record should clearly show the plea and the facts which the respondent sets up in support of it. The Orphans’ Court has jurisdiction in partition in certain defined cases and if there is any ground for ousting the jurisdiction where it is asserted in any case, it should be pleaded at the earliest opportunity and in terms so as to raise the issue. Under the pleadings in this case we do not think the appellants are in a position to compel the appellees to resort to ejectment to obtain possession before they attempt to assert their right to partition.
We agree entirely with the learned court below that the decedent died intestate as to the real estate situate in Allegheny City. The testator died seized of certain land situated in Eoss Township, Allegheny County, two lots of ground on Federal street, Allegheny City, and six lots of ground in the Tenth ward, of Allegheny City. *438In the eighth paragraph of his will he directs that his Ross Township property shall be divided between his five children. The Federal street lots are not mentioned in the will and no residuary clause covers them. It is clear that he made no testamentary disposition of them. He authorizes and empowers his executor to sell his Tenth ward property and some of the lots were sold by the executor, and the residue are involved in this proceeding. He bequeathed all his personal property not already disposed of by his will “consisting of stock, bonds, rents, uncollected balances on sales of real estate” to his five children but, as observed by the learned court below, this was a residuary gift of the testator’s personal estate, and did not embrace the “rents and uncollected balances on sales of real estate” accruing after his death, and while there was a specific gift of the proceeds of sale which the executor in his discretion might make there was no disposition of the land itself. The five children took only the proceeds of such of the lots as the executor might sell but if no sales were made they did not take the land. The testator had devised to his five children the Ross Township real estate, and had he intended to make a similar disposition of the Tenth ward lots he would have done so in appropriate language. The fact that he did not devise the lots as real estate as he did the Ross Township property in the immediately preceding paragraph, leads to the conclusion that he did not intend that his five children should take the lots but only the proceeds which would arise from a discretionary sale of them by the executor. We think the testator made no disposition of the Tenth ward lots except to authorize the executor, in his discretion, to sell them, and that the latter having failed to exercise the authority and power thus conferred, the lots themselves did not pass to the five children but were part of his undisposed of property going to his heirs at law.
The decree entered by the learned court below is in *439proper form and is correct. The petition of the parties representing the Grace Mueller interest prayed that the partition proceedings of 1893 be vacated and that the several orders and decrees therein be revoked, and that an inquest to make partition of the real estate described in the petition be granted. The prayer for partition could not be granted. It is conceded by all parties that necessarily there must be two proceedings to divide the property. A community of interests is requisite in all partition proceedings. Here, the homestead was owned exclusively by the five children of the testator who were living at the time of his death. The balance of his real estate, as to which he died intestate, went to the five children and the grandchildren, children of the testator’s daughters who had predeceased him. It is, therefore, apparent that there must be one proceeding to partition the real estate which he devised to his five children and in which the grandchildren have no interest, and another to partition the real estate of which he died intestate among both the children and grandchildren. The proceeding instituted in 1893 would not serve to make partition of either of the properties. It was instituted on the theory that the then five living children of the decedent owned all the property of which the decedent died seized, and the three separate pieces of property were divided into five purparts and allotted to the five children charged with such owelty as was determined to be due from them respectively. It is, therefore, not appropriate to a proceeding instituted in either case, and the court was right in vacating and setting aside the whole proceeding. The parties will now be at liberty to begin a proper proceeding for partition of the respective pieces of real estate to and among those entitled thereto.
The decree is affirmed.