#### ARCHIBALD McKAY *and others against*DANIEL McNEILL *and*others.

Where it appeared that the title to land, sought to be sol'd for partition, was subject to be divested out of the petitioners, by the terms of an executory devise, which extended to it, it was *held*that the Court could not order a sale of the premises!.

Where a bill is filed to have land sold for partition, but no actual partition is asked in the alternative, and no general relief prayed for, the Court will not order such actual partition, though the parties might seem to be entitled to it, if the bill had been framed otherwise.

Appeal from the Court of Equity of Eobeson county.

The bill was filed by the plaintiffs, as the heirs-at-law of .Neill McNeill, deceased, for a sale of a certain traet of land, which carne to them, as they allege, after the failure of certain limitations in the will of said Neill McNeill. They-set forth, in the bill, that as to the land, in question, it was devised in said will as follows: “ My plantation, nay woman, Bet, *259stock of all kinds, fanning utensils, household and kitchen furniture, books, cart, chair, and whatever I may possess, not otherwise disposed of, to be my son, David’s, his natural lifetime, and my single daughters, remaining on the plantation, should they live longer, to be his heirs and the heirs of each other in the plantation, whilst single, and should my son, Daniel, have a male heir, he shall be heir to my plantation after the death of my single daughters.” The plaintiffs allege that David is now dead, and that the three daughters, Catharine, Jane and Elizabeth, were single at the time of the death of the testator, and resided on the plantation in question with their brother, David, but that they all three married and removed from the plantation ; and these, with their husbands, are made defendants to this bill. The plaintiffs allege that Daniel is still :alive, and is married, and has been so for several years, but that no child, either male or female, has been born to him.

Daniel McNeill answered and opposed the sale of the land, on the ground, that during his life, no sale of the premises could take place, as no absolute title accrues to the children of Neill McNeill, until the removal of the contingency of his having a male child born to him. Elizabeth and Catha-rine, two of the daughters, mentioned in the will, of the testator, as being single and resident on the land, but who are now married, with their husbands, demurred to the bill.

The cause was set for argument on the bill and demurrer, and the Court ordered the demurrer to be over-ruled, from which the defendants appealed to this Court.

*Zeitch,*for the plaintiffs.

*Shepherd*and *W. MgL. MeKay,*for the defendants.

Battle. J.

The will, which we are called upon to construe, is certainly inartificially drawn, and some c®f its terms are somewhat obscure, but we think that enough appears to show that the construction, contended for by the plaintiffs, is correct. The land, in controversy, was given to the testator’s son, Da*260vid, for life, and the daughters, who were living on the premises at the téstator’s death, were to have it for life also, provided they remained single'and survived David. But they married and left the premises ; so this life-estate was defeated by the condition annexed. The only other devise of the land is to the male heirs of the testator’s son, Daniel, which, as Daniel has, as yet, no son, remains an executory one. The consequence-is, that as the life-estates given, have terminated by the death of David and the marriage of the daughters, the land belongs to the heirs-at-law of the testator, subject to the executory devise in favor of the heirs-at-law of Daniel- Mc-Neill. Such being the case, the Court cannot order a sale, because it cannot defeat the executory devise and-convey a good title in fee simple to the purchaser. *Watson*v. *Watson, 3*Jones’ Eq. 400.

That, however, does not deprive the plaintiffs of the right to have a partition of the land, and if the bill contained either a specific prayer in the alternative, for that purpose, or -even a prayer for relief generally, we should not ¿esitate to order a partition among the parties specifically, but in the absence of any such prayer, we would not be justified in ordering what the parties have not asked, and what, so far as we know, they do not want.

We must, therefore, sustain the demurrer and dismiss the bill, but it is without prejudice to the right of the plaintiffs to file a bill for a partition of the land according to their interest in the same.

Pee CueiáM, Bill dismissed.