John S. Moore died seized of real and personal property, leaving him surviving four children, the plaintiff, now aged 21 years, and the defendants, all over 14 years of age, hut none of whom have attained their majority. The decedent’s will, which has been admitted to probate, provides that, after payment of his debts, the remainder of his property be “turned over and delivered” to two trustees named therein, who are directed to carry on the business of stock raising upon the testator’s ranch for the space of ten years after the testator’s death in, as nearly as can be, the same manner that the testator had carried on the said business, and out of the receipts to provide for his said children. At the end of said term the whole estate, less the legitimate costs and expenses of guardianship and administration, was to be divided amongst his four children, share and share alike. The will also contained the provision that, in case of the death of any of said children Avitliin ten years after the death of the testator, the share of such child should* be divided amongst those surviving. The testator’s object was expressly stated to be to keep and hold the property together, for the term named, for the benefit of his children. He died on the 27th day of December, 1901, and on the 28th day of December, 1905, the plaintiff filed her petition, describing the land of which the testator died seized, and, exhibiting to the court the foregoing facts, prayed for a partition of the said land amongst the parties, and, if a partition coaid not be made, for a sale and division of the proceeds. To this petition a demurrer Avas interposed, which was sustained, and from a judgment rendered dismissing the action the plaintiff appeals.
1. The plaintiff does not attack the validity of the will, nor the right of possession of the trustees, who are not made parties to the action. The will, as we have seen, directs the trustees named therein to take, possession, and manage the testator’s property for ten years after’his
2. It was the ancient doctrine under the statute of Henry VIII that no persons could be made parties to a writ in partition, or be affected by it, but such as were entitled to the present possession of their share in severalty. 4 Kent, Commentaries (rev. ed.), '”‘364, note. And this rule prevails generally in this country, where not changed by statute. 1 Washburn, Real Property (5th ed.), p. 715; Nichols v. Nichols,
By the Court: For the reasons stated' in the foregoing-opinion, the judgment of the district court is
Affirmed.