
    Jas H. Witherspoon, et al. vs. Samuel F. Dunlap and Mary Dunlap.
    Petition for Partition.
    51T will and bequeath to my son Robert, one of the plantations 1 now live on, adjoining Wren and Roper," was Held by the court to convey only a life estate.
    Where there are no words of inheritance, or words equivalent thereto, the estate (of real property,') is for life.
    Únder the act of 1"91, the circuit court has not the power to issue writs of partition, but in cases of intestacy ; but where land has been devised for life only, without any ulterior disposition by the will, the court will grant a writ of partition of the remainder over, as in other cases of intestacy.
    The above act (of 1791,) authorises the appointment of surveyors, as in cases .of dower, to run the linesbetween the lands to be devided, as other lands, as well as the lines between the divisions into which the land is to be partitioned; and to ascertain such division lines, reference may be had to the will devising the particular or life estate, in order the better, to admeasure the remainder, undevised; for wherever a power is given, every thing essential to its exercise, is im-plicdlv conferred.
    By tiie act of 1748, in all cases where any land shall be given or descend to any person in coparcenary, joint tenances or in common, such person or persons, as soon as they become of age, may apply to the circuit court for a writ of partition, and if any such persons, twelve months aftér becoming of age, neglect to do 30, then the guardian of him or them not of age may apply.
    And where there are no guardians, the circuit court under the act of of1808, has all the power appertaining to the court of equity, (besides the common law power of appointing ad litem) of appointing guardians, so far as the rights of minors are concerned, in the partition of estates either real or personal, under the act of 1791, as well as allotheracts relative tothe partition of estates, real or personal, 
    
    .... JL HE petition in this case stated that on or about the-day of-in the year 1800, Robert Crawford, the elder, departed this life, having first duly made and executed his last will and testament, in which, after several bequests and devises, he gave to his two sons, Robert and John, the plantation ori which he then lived, in the following words, viz. “ I will and bequeath to my son Robert one half of -the plantation I now live' on, joining Wren Ssf Roper. I will and bequeath to my son John, one half of the planta* tion I now live on, including the improvements.”
    The petition further stated that the said Robert Crawford, the elder, left no widow at his death, but left the following children, viz. the parties to the petition, some of whom are minors. That Robert Crawford, jun. to whom, the moiety of the said pi ¡ntation was given, departed this life on or about the first of January, 1821, leaving neither widow or child, having first by deed, duly made and executed, conveyed all his right and title to the said plantation to Sam. F» Dunlap, who is now in possession thereof. That the said Sam. F. Dunlap is the son of Mary Dunlap, who was a daughter of Robert Crawford, sen. the testator. The petitioners then stated that they had in a friendly manner, applied to the said Sam. F. Dunlap and his mother Mary Dunlap, for a division of the said land among the heirs of the said Robert Crawford, sen. which «request having been refused, they applied to the circuit court for a rule on the said Sam. F. Dunlap, and Mary his mother, to shew cause why a writ of partition should not issue, in conformity to the acts of the legislature in such case made and provided.
    For cause, the said Samuel and Mary, by their counsel, shewed,
    1st. That Robert Craxvford took an absolute estate, under the will, in the moiety of the said plantation, and consequently the petitioners had no right to a partition thereof¿ and
    2dly. That if Robert Craxvford, jun. did not take more than a life estate under the will, yet as a division of Robert's moiety could not be effected without a prior division of the plantation into two equal parts, as required by the will of Robert Craxvford, sen, this court had no jurisdiction, in as much as the act of 1791, does not au-thorise this court to issue partition, but in cases of intestacy, and the act of 1748, only authorizes a partition of land by this court, in cases of testacy, when the parties are of full age, or minors having guardians. That prior to the act of 1791, tliis court had no power to appoint guardians for minors’ persons or estates, and consequently this court cannot until such be appointed by the court of chancery,, issue a writ of partition in this case.
    The application for the rule was dismissed by the circuit court. A motion was now submitted to reverse tliat deci - sion.
    
      
      
        .) la the ease of Grant, et al. vs. Grant, et al. at the circuit couri; held by Judge Colcack, it bad been moved to confirm a return made by the commissioners, in a case of intestacy, which bis honor refused, be. cause the guardians of the minors concerned, “ had not entered into bond and securityand the constitutional court on an appeal at this term, ordered the return tobe confirmed ; and Judge Richardson, who delivered the opinion, says, « It is to be observed that guardians ad li-tem, are the only agents required in order to defend minors in shits at law. Such guardians are all that were appointed in cases of partition, from the act for dividing estates of intestates, passed in 1791, down to 1808, when the act of that year, (1 Brevard, 231,) declares; — “and whereas, the rights of minors are often involved in such ' divisions, and no sufficient power vested in the said courts of common pleas, to pro. tect the said rights of minors Be it therefore enacted, that all the power and authority appertaining to, and exercised by the court of equity, as to the appointment of guardians of the persons and estates of minors, be, and the same is hereby vested in the judges of the courts of common pleas, or either of them, holding such court, so far as the rights of minors may be concerned in any real or personal property, to be divided under the said act of assembly, passed on the nineleeth day of February, in the year of our Lord, one thousand seven hundred and ninety, one, 8cc.”
      It is plain that the intent cf the act was not to enable the court to divide intestates estates ; for that power they, liad possessed ever since 1791; but to authorise the judges at law, to appoint guardians of the estate, co instanti, that the estate was divided. The end was, that the minór might not himself receive his dividend after division made ; but that it should go into the custody of a guardian. But this proceeding, intended to preserve the estate of (he minor, is not to retard the progress oftlie suit, or postpone the division. The plaintiff being-of full age, or married, claims the division as of right, in order to get his part, under the former act of 1791. If the minors should be unable to procure guardians, still his right cannot be disputed, and the court must still order the division, &c. to be made and confirmed, in order that the plaintiff may have his part of the estate. And as to the part going to a minor, the court may appoint guardians to receive and keep it, after the division is made. '
      In a word, the guardian of the estate has no necessary connection, with the inception,-progress, or completion of the suit. He may be appointed at any stagé of the case ; but strictly and properly, his office commences on the termination of the suit. He is then, ftnd not before, to receive and preserve the estate, which shall have been adjudged to, and which might, but fpr his appointment, go into the hands of the mi - nor.” E.
    
   Air. Justice Huger

delivered the opinion of the couvf.

The application was dismissed i'n the circuit court on the second ground. No doubt was there entertained as to the first. But as in the argument, the counsel for the appellees has again urged it, an expression pf the opinion of this court has become necessary.

In the case of Hall & Goodwyn, (2 Nott & McCord, 383,) it was decided that a devise of land without words of perpetuity, and where there is nothing in the will from which a fee can be raised by implication, vests only a life estate in tfie devisee. In that' case, the preamble of the will contained the following words, “as touching such worldly estate as it has pleased God to bless me with in this life, I give, demise and dispose of the same in the following manner and form the devising clause was as follows: “ I give and bequeath to Robert Hozvell, a tract of lancl of one hundred acres.” The decision was, that Robert tOolc but a life estate. In the case before the court, there is nothing in the preamble or in any other part of the will, from which the words in the devising clause can receive any colouring. The words are, “ I will' gnd bequeath to my son Robert, one half of the plantation I now live on, adjoining Wren £$? Roper” “ One half of theplanta-tation I now live, adjoining Wren Roper” are words of description and Convey nq-particular import. "Where there areno words of inheritance, or words equivalent to'words of inheritance, the estate is for life. Such ' has been the uniform decision of this court, and such is our urianimous Opinion now.

On the first ground, u.orefore, the court is with the appellant.

The act of 1791, as has been contended, only gives to the circuit court the power to issue writs of partition in cases of intestacy. If, therefore, the application in this case, is to divide land in conformity to the will of Crawford., and the circuit court have no jurisdiction, but under that act, the petition was properly refused. But here two questions arise.

1st. Is tiiis an application to divide land under the will of Crawford, sen. ? and,

2dl. It it be so, has not the circuit court jurisdiction under the act of 1748 ?

As the will makes no disposition of the land in question beyond the life of Robert, it is very clear that it must be divided under the act of distributions, which is the very pase provided for by the act of 1791. In other words, it is a case of intestacy. It is true that in dividing this land in conformity to the act of distributions, it becomes necessary first to divide the original plantation into two equal parts, in order to ascertain the lines of the land to be partitioned. But wherever a power is expressly given, every thing essential to the exercise of that power is impliedly given. In this instance, however, litle is left to implication. The act of 1791 declares that partition shall be made according to the act for the admeasurement of dower ; which act provides for the appointment of surveyors to run the lines between the lands to be partitioned and other lands, as well as the lines between the divisions into which the land is to be partitioned. According to the act of 1791, then, the circuit court possessed jurisdiction, and a writ of partition ought to have been issued.

But had not the act of 1791 authorized the proceeding, the act of 1748 does. The words of that act arc, “ that in all cases where any lands shall be given or descend to any person in coparcenary, jojnt tenancy, or tenancy in common, when and as soon as any one of the said copar-ceners, joint tenants, or tenants in common, shall be oí the age of twenty-one, he may apply to the court of conn-mon pleas for a writ of partition; and if he shall neglect so to do for twelve months, then the guardians of him or them under ago shall apply.

Holmes, for the motion.

Miller, contra.

It is however said that although this act does authorize the courts to issue a writ of partition where there are guardians, yet where there are no guardians, it cannot do so, as it possesses no power to appoint guardians for persons or property. By the act 1808, (giving to the court of common pleas certain equity powers,) it is declared that all the power and authority appertaining to, and exercised by the court of equity as to the appointment of guardians of the persons and properties of minors, be and the same is vested in the Judges of the court of common pleas, so far as the rights of minors may be concerned in any real or personal property, to be divided under the act passed in 1791, as well as all other acts relative to the partition of estates real or personal. But independent of the act of 1808, the court of common pleas possesses at common law the power to appoint a guardian ad litem, and is in the daily habit of exercising that power.

In the case of Crompton and Ulmer, (2 Nott & M'Cord, 429.) some doubt was expressed as to the power of the court of common pleas, to appoint a guardian, but the question was not necessarily involved in the case, nor did the Judge who delivered the opinion of the court, mean to do more than express a doubt. I am of opinion therefore that the petitioners were entitled to a partition, and that the writ ought to have been issued.

The motion therefore must be granted.

Justices Richardson and Gantt, concurred.  