#### *Eliza Fewell and others*vs. *Eliza M. Fewell.*

Devise of land, to the use of R. during Ms life, and in no case to be taken for debt, and at his decease to descend to his lawful heirs :' *jffeldy*that It. took an estate in fee simple, and not merely an estate for life with remainder to his heirs.

*Before*Wardlaw, Ch.; *at Chambers, November,*1853.

This bill was filed by the plaintiffs, against the defendant, for partition of a tract of land lying in York district, to which they allege in their bill, that they, the plaintiffs and defendant, being the only heirs at law of Robert Fewell, deceased, are entitled, under the following clause of the will of John Fewell, viz : “ I hereby confirm and make over to the use of my son Robert, the land on which he now lives, during his life, and in no case to be taken for debt, and at his decease to-descend to his lawful heirs.”

A motion for confirmation of the return of the Commissioners, recommending a sale of the land for partition, was refused by his Honor, at Chambers, in the following decree :

Wardlaw, Ch. This motion is refused. It is very clear that by operation of the rule in *Shelley’s*case, the will of John Fewell gave the land sought to be divided to Robert Fewell, in fee simple. The bill states that Robert Fewell died in June, 1853, but it does not state whether he died testate or intestate> solvent or insolvent, nor whether there be any representative of his estate. The pleadings seem to assume that the widow and children of Robert took as purchasers under the will of John ; whereas, in my judgment, they can only take as devisees or distri-buteess of Robert; and in that view a case is not stated for partition of the land as Robert’s estate. Devisees or distributees take subordinately to the claims of creditors of the deceased, and have no right to partition until the debts be paid, or secured to be paid. Creditors are allowed by our Act a year from the death of their debtor, for presentment of their demands, and ordinarily partition is not safe within that term. The personal represen*139tative, for the security of creditors, should always be made a party in proceedings for partition. *Swift*vs. *Miles,*2 Rich. Eq. 154. And where partition of lands is sought within a year from the death of ancestor or testator, the procedure of the Court requires an administrator, already bound by bond, by answer, or some writing more obligatory than the declarations of his counsel in a bill, to acknowledge sufficiency of personal assets in his hands, for payment of all debts and expenses, and in the case of an executor requires even more stringent security in behalf of creditors.

It is adjudged and decreed that the order of the Commissioner for a writ of partition in this case be revoked. It is further ordered that the plaintiffs have leave to amend their bill as they may be advised.

The plaintiffs appealed on the ground:

Because it is submitted that Robert Fewell took only a life estate in the land, under the will of John Fewell, and upon the death of the said Robert plaintiffs and defendant became entitled to th.e remainder in fee.

*Moore,*for appellants.

*Per Curiam.*

This Court concrrrs with the Chancellor: and it is ordered that his decree be affirmed, and the appeal dismissed.

Johnston, Dunkin, Dargan and Wardlaw, CC., concurring.

*Appeal dismissed.*