#### Stein et al. *v.*White, Admr., et al.

*Real property*— Equitable *partition*— Adverse *possession by remainderman before life estate terminated*— Section *1100!, General Code*— Statute *of limitations runs against other remaindermen, when*— Estoppel—Jurisdiction *of probate court —Sale of improvements as part of estate.*

(No. 17999

Decided March 25, 1924.)

Error to the Court of Appeals of Columbiana county.

This case arises upon the amended petition of the administrator with the will annexed of the estate of Samuel Dobbs, deceased, filed in the probate court of Columbiana county, praying for an order to sell certain real estate consisting of about eight acres at public sale to pay legacies. The petition alleges that the last will and testament of Samuel Dobbs contains the following provisions:

“ ‘I give, devise and bequeath to my wife, Rebecca Dobbs, all my real estate and personal property to have as long as she remains my widow’ and ‘at my said wife’s death or marriage then I desire that all of my real and personal property be sold and my son George W. Dobbs be paid the sum of fifty dollars and the balance to be divided equally among the following named children, Sarah C. Hamilton, Rebecca E. Young, Zella E. Dobbs, Samuel M. Dobbs, Mary C. Dobbs, and James B. Dobbs.’ ”

The petition further alleges that the said Rebecca Dobbs, widow of the said Samuel Dobbs, ^deceased, is now dead; that Zella E. Dobbs is *579dead, without issue; that Sarah G. Hamilton has since intermarried with one Horner; that Mary O. Dobbs has since intermarried with one McDaniel; that Samuel Dobbs died seized in fee simple of certain real estate situated in Columbiana county, which was appraised in accordance with the order of the court as being of the value of $1,400; that the defendants Sarah O. Homer, Ee becca E. Young, Samuel M. Dobbs, George W. Dobbs, Mary O. McDaniel, and James B. Dobbs are all the next of kin of said Samuel Dobbs, deceased; and that the defendant Laura Dobbs Stein claims to own an interest in the said real estate. In addition to praying for an order to sell the real estate described at public sale, the petition prayed that the defendant Laura Dobbs Stein be made to answer and set up her claim to the real estate or be forever barred from asserting the same.

The answer and cross-petition of Laura Dobbs Stein averred, in substance, that Samuel M. Dobbs, the defendant, and his' cotenants, all children of Samuel Dobbs, deceased, more than 30 years ago made an amicable partition of the real estate described to the extent of one acre of land, in which partition it was verbally agreed that the said Samuel M. Dobbs should take as his full interest in the said real estate the said single acre.

The answer and cross-petition of Laura Dobbs Stein further averred that, in consideration of receiving the full legal title for the said premises, the said Samuel M. Dobbs agreed that neither he nor his heirs would at any time make any claim to the remainder of the property of Samuel Dobbs, deceased; that the said Samuel M. Dobbs was, by *580his brothers and sisters, placed in possession of the real estate claimed herein, and with their full knowledge and acquiescence he and Laura Dobbs Stein improved said property by having it surveyed, and line fences constructed; that they erected on such real estate a residence which they fitted up for a home, which, with additions added thereto by Laura Dobbs Stein, cost approximately $2,000; and that Laura Dobbs Stein has occupied said premises as a home under a claim of ownership for much more than 21 years and practically all of the last 30 years.

The answer and cross-petition of Samuel M. Dobbs set up that Laura Dobbs Stein took possession of the said premises in September, 1908; that she has since been in continuous possession thereof, and with the full knowledge and consent of Samuel M. Dobbs has placed improvements thereon; and that said possession of said real estate was originally taken by Samuel M. Dobbs under an agreement with said codefendants, and with the full knowledge and consent of all the heirs at law of said Samuel Dobbs, deceased.

The record shows that at the time of the alleged amicable partition Laura Dobbs Stein was the wife of Samuel M. Dobbs, and that she was divorced from the said Samuel M. Dobbs in 1892.

In the probate court the judgment was rendered in favor of the plaintiff administrator and against Laura Dobbs Stein and Samuel M. Dobbs. In the court of common pleas the plaintiff was ordered to sell the described real estate, and the defendant Laura Dobbs Stein was barred from asserting any claim to any part thereof. The judgment of the *581court of common pleas was affirmed by the Court of Appeals.

*Mr. H. E. Grosshans*and *Mr. P. M. Smith,*for plaintiffs in error.

*Messrs. Lones, Hill & Davidson*and *Mr. J. E. Davis,*for defendants in error.

By the Court.

The plaintiffs in error assert that various prejudicial errors of law occurred in the judgment of the Court of Appeals. These alleged errors, according to the plaintiffs in error, involve questions which are substantially as follows:

(1) Will equitable partition be enforced where possession is taken and maintained for 35 years?

(2) Under Section 11901, General Code, does the statute of limitations start to run against a *remainderman*who has knowledge of possession by an adverse claimant?

(3) Are defendants in error estopped by their neglect to protest against the visible and notorious possession of the son and his family, and their improvement of the property, and by their own failure to invoke their remedy under the statute?

(4) Had the probate court jurisdiction over the subject-matter, and was not its apparent jurisdiction under the petition ousted by the answer and the evidence?

(5) Was it error in the court to order the sale of improvements made by plaintiffs in error, on the ground that they constituted part of the estate of the decedent?

Several of these questions are disposed of by *582the record. As to the first contention, since there is no finding of facts before us, we cannot tell that the trial courts found that equitable partition had been made. There was evidence to the effect that Samuel M. Dobbs, with the consent of his mother, the life tenant, built a two-room house upon the acre he now claims. The evidence exhibits no express approval upon the part of the other co-tenants.

There is evidence tending to establish that the brothers and sisters at a meeting held after Samuel M. Dobbs had built the two-room house, refused to sign deeds releasing to Samuel Dobbs their interest in this one acre.

The lower courts, therefore, may well have found upon the evidence that equitable partition had not taken place, and this question is not before us.

Plaintiffs in error ground their second objection opon the fact that defendants in error at no time instituted an action against plaintiffs-in error, under Section 11901, General Code, which, in substance, reads:

> “An action may be brought by a person in possession of real property * * * against any person who claims an estate or interest therein, adverse to him, for the purpose of determining such adverse estate or interest; or * * * by a person out of possession, having, or claiming to have, an estate or interest in remainder or reversion in real property, against any person who claims to have an estate or interest therein, adverse to him, for the purpose of determining the interests of the parties therein.”

*583This question also is not before us here. The evidence shows that the possession of the plaintiffs in error did not of itself constitute an adverse claim, as distinguished from an express claim of ownership, for the reason that the widow, the life tenant, lived upon the 8 acres in question as life tenant until 1919. Plaintiffs in error cannot therefore claim adverse possession because the statute does not begin to run against the remainderman until the life estate has terminated. No possession can be deemed adverse to a party who has not at the time the right of entry and possession. *Webster*v. *Pittsburg, Cleveland & Toledo Rd. Co.,*78 Ohio St., 87, 84 N. E., 592, 15 L. R. A. (N. S.), 1154.

Moreover, under the evidence, Samuel M. Dobbs made no claim, and committed no overt act, which clearly showed that he was asserting a right to the acre in question to the exclusion of the rights of the defendants in error. His ownership was consistent with the theory that he was building the house by arrangement with his mother, the life tenant, upon the assumption that the life tenancy was to continue for a considerable period.

Under the decision in *Youngs*v. *Heffner,*36 Ohio St., 232, these facts do not constitute adverse possession, nor an adverse claim, on the part of plaintiffs in error.

The same facts are decisive of the third question raised here. The defendants in error were not estopped by their neglect to protest an occupation which was consistent with a right to possession of the premises, derived not from exclusive adverse possession, but from contract with *584the life tenant, not adverse to the rights of' the defendants in error.

Under the fourth question the plaintiffs in error claim that the prohate court had no jurisdiction over the subject-matter of this action. This contention has been decided against the plaintiffs in error in a similar case. *Doan*v. *Biteley,*49 Ohio St., 588, 32 N. E., 600.

Plaintiffs in error finally claim that the court had no power to sell the improvements made on the acre in question as part of the estate of the decedent. However, under the record, the occupancy of the plaintiffs in error may have been an occupancy derived from a contract with the life tenant, the widow. If so, plaintiff in error, Laura Dobbs Stein, has the rights of the widow, and her rights only, in the land. The widow, Bebecca Dobbs, would have had no right to recover from the remainderman for improvements made during her possession under the life estate, and a party whose rights are derived from contract with the life tenant is entitled to no greater right. 13 L. R. A. (N. S.), 514, note; *Taylor*v. *Foster’s Admr.,*22 Ohio St., 255; *Haflick*v. *Stober,*11 Ohio St., 482.

There being no finding of facts by the Court of Appeals, and the evidence in the record justifying its conclusion the judgment is affirmed.

*Judgment affirmed.*

Marshall, C. J., Robinson, Jones, Matthias, Day and Allen, JJ., concur.