#### EMELINE ALLEN *against*JAMES ALLEN AND OTHERS.

Where land descended from A to his daughter B, and from her to her miele 0, who took an estate in reversion after a life-estate in the mother of B, it was *Jleld*that a deed made by C conveying “ *all my interest in my brother*M's *property,"*did not pass this interest derived from his niece B.

In a suit for partition by a sale, by one tenant in common against-the co-tenants, where the petitioner is in possession of the land, and the interest sought to be sold, is a reversion, although the tenancy in common is denied by the defendants, inasmuch as an ejectment cannot be brought by the plaintiff to determine this right at Law, a Court of Equity will proceed to determine the matter; especially where the question of tenancy depends merely upon construction.

This was a petition for pabtition, removed from the Court of Equity of Beaufort County.

TIenry Allen died about -20th of September, 1849, seized of the premises described in the plaintiff’s petition. lie left, surviving him, his widow, the plaintiff, and an only child, a daughter named Isabel, his sole heir-at-law, to whom the land in question descended, subject to plaintiff’s right of dower. In about a month after the death of her father, Isabel died without issue, being an infant, never having married, and without brother or sister.

It is insisted by the plaintiff that she became entitled to a life-estate in this property, and that the" reversion, after her death was in Meazer Allen, William Allen, James Allen, Mary Anne Allen, and Era-nces Allen, ..(since intermarried with Edmund Harris,) as tenants in common, who were the next of ldn, and heirs-at-law of their niece Isabel.

By virtue of an execution issuing from the office of the. County Court of Washington, tested of November term, 1851, directed to the sheriff of Beaufort, the interest of William Allen was levied on, and duly sold at public auction, when the plaintiff became the purchaser, and having paid the amount bid by her, took a sheriff’s deed for the same, by which, she alleges in her petition, she became seized in fee of the reversion, as tenant in common with Meazer Allen, James Allen, *236Mary Anne Allen, and Frances Allen, now Frances Harris. The plaintiff alleges that a division of the property cannot be made without injury to the interests of all, and therefore she prays the Court to decree a sale and a division of the fund, according to the rights of the parties as above set forth.

The answer -of the defendants was filed, denying that Isabel out-lived her father, Henry Allen, and contending, therefore, that the plaintiff, her mother, was not seized of a life-estate in the premises as claimed in her petition ; bu't after proofs were taken, a written agreement was filed in the cause, signed by the counsel on both sides, .admitting that Isabel did survive her father.

The answer of the defendants further denies, that the plaintiff is seized as tenant in common with them of the land in question; for that before the rendition of the judgment against William Allen, and prior to the test of the execution, (November term, 1851,) by deed bearing date 2nd day of February, 1851, the said William Allen sold and conveyed the land in question, to one Mary Allen, (his mother,) which deed is as follows:

*“*State of North Carolina, Washington County.

“ This bargain wras made and entered into this 2nd day of February, 1851, between William Allen of the one part, and Mary Allen of the other part. I, William Allen, Jnn’r-, do sell unto Mary Allen, all my right and interest in my father’s estate at my mother’s death, which I was to heir; also I sell, unto Mary Allen, my interest in my brother Henry’s property, for and in consideration of the sum of four hundred dollars, to me in hand paid by Mary Allen, which I do sell all my i-ights and titles unto Mary Allen, her heirs and assigns, administrators, executors, for ever, do warrant and defend unto Mary Allen and her heirs, from all claims and all persons whatsoever. To witness whereof I have hereunto set my hand and seal, the day and date first above written.”

Signed. WilliaM Alleít, [seal.}

There was replication and proofs; and the cause being set down for hearing, was sent to this Court by consent.

*237Modmcin, for plaintiff.

Donnell, for defendant.

PeaRSON, J.

There is plenary proof of the fact, that the child Isabel survived her father, Henry Allen.; indeed, the counsel for the defendants admit this fact. It disposes of the case. The land descended to Isabel, subject to her mother’s right of dower; by her death, the mother became entitled to a life-estate in the whole of the premises, ;and had no occasion to fall back upon her right to dower. The remaining question depends upon the construction of the deed of William Allen to Mary Allen, 2nd Eobrnary, 1851, by which he conveys to her “ my interest in my brother Henry’s property.” As the land descended from Henry to his daughter Isabel, although upon her death, her uncle, William Allen, became entitled to an undivided part thereof, as one of *her*heirs-at-law, this cannot, .by any mode of construction, be included under the words *“*my interest in my brother Henry’s property.” The interest which he takes as heir of his niece, is an undivided part, subject to a life-estate of his brother’s widow in *the whole ;*whereas, the interest that he would have taken as heir of his brother, had he survived his daughter, would have been an undivided part, subject to a life-estate of his brotiler’s widow in *one-third*thereof. So, the subject matter is essentially different, and the words of the deed do not embrace it; consequently, the plaintiff, by her purchase at sheriff’s sale of the estate of William Allen, as one of the heirs of his niece Isabel, became entitled to the share of the said William in the reversion, subject to her life-estate, and thereby became a tenant in common with the defendants, in the reversion.

This question was suggested: as the defendants deny the tenancy in common, should not the plaintiff, according to the course of the Court-, establish her title as a tenant in common, by an action of ejectment, before she can ask for partition 2 Such is the rule in ordinary cases. *Garrett*v. White, 3 Ire. Eq. 131. But in this case, as the plaintiff is in possession, and is entitled to a life-estate, and the tenancy in common is in re-*238specfc to tbe reversion only, an action of ejectment cannot be brought for the purpose of establishing her title as tenant in common of the reversion. In analogy to the rule in regard, to chattels, where one tenant in common cannot maintain an action against his co-tenants, unless the property be destroyed, as settled in *Weeks*v. *Weeks,*5 Ire. Eq. 111, we think the plaintiff is entitled to the decree prayed for. Resides the fact that the plaintiff cannot bring an action at law, there is the further consideration in this case, that the whole depends upon a mere matter of construction, which we are as well able to decide in this Court, as if the matter were brought before us. sitting as a Court of law. The only material fact upon which the whole case turns is admitted, the denial of a tenancy in common being predicated in the answers upon a denial' of a fact which is now admitted, to ewit, the fact that the child outlived her father. "

Pbk CuuiaM. - Decree for plaintiff.