Brown v. Brown

• Decision Date: 15 March 1910
• Citation: 67 S.E. 596,67 W.Va. 251
• Court: West Virginia Supreme Court
• Parties: BROWN v. BROWN et al.

67 S.E. 596

67 W.Va. 251

BROWN

v.BROWN et al.

Supreme Court of Appeals of West Virginia.

March 15, 1910.

(Syllabus by the Court.)

1. Partition (§ 12^*)—Who May Maintain— Action by Remaindermen.

One of several remaindermen in land after a life estate cannot have partition during the continuance of the life. estate, even though he has acquired that life estate, unless he waives that life estate.

[Ed. Note.—For other cases, see Partition, Cent. Dig. §§ 38-51; Dee. Dig. § 12.*]

2. Partition by Remainderman.

Otley v. McAlpine, 2 Grat. (Va.) 340, disapproved.

Appeal from Circuit Court, Monongalia County.

Bill by John M. G. Brown against Robert L. Brown and others. Decree for defendants. Plaintiff appeals. Affirmed.

Moreland, Moreland & Guy and Cox & Baker, for appellant.

Donley & Hatfield, for appellee Brown.

BRANNON, J. John J. Brown died in August, 1905, having made a will by which he devised real estate in the city of Morgantown to his wife, Mary Ellen Brown, during her life, with remainder to his children, John M. G. Brown, Robert L. Brown, Margaret A. Stoetzer, and three infant grandchildren, children of a dead son, Zalmon Kent Brown. The widow conveyed her life estate to one of said devisees, John M. G. Brown, and he brought a suit in the circuit court of Monongalia county to compel a partition of the land among those entitled. The court dismissed the bill, and John M. G. Brown appeals.

Has John M. G. Brown right to enforce partition? He owns an undivided fourth in remainder subject to the life estate under the will, and he owns that life estate. He cannot maintain a suit for partition by virtue of his remainder. Nor can he have partition unless entitled to immediate possession. A remainderman is not so entitled. This court has decided that a reversioner or remainderman cannot compel partition during the continuance of a particular estate. Merritt v. Hughes, 36 W. Va. 356, 15 S. E. 56; Croston v. Male, 56 W. Va. 205, 49 S. E. 136, 107 Am. St. Rep. 918. That is abundantly established by the authorities there given. If any further authorities were needed, a pile of them will be found in 113 Am. St. Rep. 55, note. But the plaintiff has the life estate of his mother in addition to his undivided fourth in remainder as devisee. Does that life estate give him any additional right that he can add to his estate in remainder? Surely not, because a life tenant cannot compel a partition among remaindermen. A life tenant has not a particle of interest in estates in remainder, not a co-tenant with remaindermen, and nobody can have partition unless he have title to the thing to be partitioned. 21 Am. & Eng. Ency. L. 1146. A life tenant owning with one or more others a life estate can have that estate divided between himself and co-owners of the life estate; but what colorable right has he to demand a partition among the remaindermen? He already has possession and right to enjoy, the estate during his life, and could get no more by partition. It is well settled on authority and the nature of things that a tenant for life has no power to maintain suit for partition against remaindermen entitled in fee subject to the life estate. The well-considered case of Seiders v. Giles, 141 Pa. 93, 21 Atl. 514; 30 Cyc. 181; 30 Cyc. 200. We find in 21 Am. & Eng. Ency. L. 1155, this: Where a married woman dies seised with an undivided interest in land leaving her husband entitled to curtesy, he becomes a life tenant of an undivided moiety, and may maintain partition against his wife's co-tenant. "Where, however, the wife wasseised of the entire tract, the tenant by the curtesy becomes a life tenant of the entire tract, and hence is not a co-tenant with the remaindermen, and has no such estate as will support partition." Also, page, 1153. Freeman on Partition, § 455, says, that "a tenant for life or for years could,...