#### Andrew Hoyle *v.*Thomas Huson and others, devisees of Mason Huson,

From Lincoln.

A devisor devised so much of his lands as his wife could cultivate, to her during her life or widowhood, and that his executors should rent out the residue of his cleared land until his children came of age, to take it into possession. The life estate having expired during the nonage of some of the children, it was held that those of age, had a right to an immediate partition, of the whole of the land devised.

Tills \Vas a petition for partition of land, devised by *Mason Huson*deceased, to his ¡yx children.

The wili of *Mason Huson,*was attached to the petition, and made part of it.' By it, the land of which partition was demanded, was devised as follows : “ Í will “ that my wife *Mary Huson,*shall have such a part of “ my land as she with her children and negroes, which *“*are left to her, can attend under crop annually, during *“*her natural life or widowhood, and the balance of clear *“*land, I will that it be rented out annually by my exe- “ cutors, until my children come of age to take it into *“*their own possession.”

The petition charged that *Mary Huson,*the wife of the Devisor, had marrricd *;*that the Plaintiff had purchased the interest of *Elizabeth Huson,*one of the devisees, and that *Ridley Huson,*another of them, had died intestate, after the Devisor.

No answer or plea was filed ; hut from the orders made in the cause in the Court below, it appeared that some of the Devisees were infants when the petition was filed.

On the last Circuit, the cause was heard before his honor Judge Norwood, upon the motion of the Demand-ant, for a writ of partition, when tiis honor, thinking that the devisor had carved out of the inheritance a term *349for years, which had not expired, and which vested in his executors, in trust for the maintenance of his children, until the full age of the youngest, dismissed the petition — from which the Demandant appealed.

The cause was submitted by *Wilson,*for the Demand-ant. No counsel appeared for the Defendants.

Ham, Judge.

The clause of the will, on which the question in this case turns, is as follows: *“*I will that my wife *Mary Huson,*shall have such a part of my land, as she with her children and negroes, which are left to her, can attend under crop annually, during her natural life or widowhood ; and the balance of clear land, I will that it be rented out by my executors, until my children come of age, to take it into their own possession.” It is stated that *Mary Huson*is since married ; and I suppose it may be taken for granted, that *Elizabeth Huson*wras of full age, when the petitioner purchased her interest in the land in question. Whether *Ridley Huson*died before or since that purchase, is not stated. If since, the petitioner has no right to his share of (he land. But Í suppose the real question intended to be submitted, is, whether the petitioner has a present right to have partition, consistently with that clause of the will before recited.

The reason why the. devisor directed (he land to be rented out until his children came of age, was that before that time, they were presumed not to have sufficient capacity to manage it. Now, there was no one time, when all the children came of age — that event happened at different periods. When one of them came of age, he or she thereby acquired capacity tb manage his or her property, and that one had no concern in point of interest, whether the others were minors or not. The land was to be divided amongst them, and it made no difference with the minors, whether the one that was of age, managed his property or not. It is not stated in the case, that Hie *350land undivided, yielded more to each claimant, that it would do, when divided. Nor is there an appropriation made of the rents and profits of the. land for any particular purpose, or for any particular time, so as to prevent a partition as the children severally arrived at maturity. Again, suppose one of them to be of age, and others of them of very tender years,1 it may be ten or fifteen years, or perhaps a longer time, before, the one of age could be let into ibe possession of his land, although the infants w ould not be at all benefited, by a continuance of fbe tenancy in common.. Much injury might in such a case, be done to the elder branches of the family, and no possible benefit could result to the younger. I therefore think the petitioner has a right, at the present time, to have partition made, as prayed for in the petition.

Per Curiam. — Judgment reversed, and judgment for the Demandant, that partition be made.