
    BELLE E. CHISM, Appellant, v. ELLEN H. KEITH and others, Respondents.
    
      Partition — action for, may he maintained hy rested remainderman—effect of, on contingent interests of persons not in esse—Vested remainder—what creates.
    
    The provisions of a will, by which real property is given to “the heirs of the body of A., whom she shall leave her surviving,” give to the devisees, during the lifetime of A., a vested remainder in fee, liable to open and let in after-born children, and liable, also, to be defeated by the death of any devisee before the decease of A.
    One who is entitled to such a vested remainder in lands is in possession of his undivided share, within such meaning of the statute relating to actions for partition of lands, although there is a life estate covering the whole lands, and the life tenant is in possession.
    Future contingent interests of persons, not in esse, may be barred by a sale under a judgment in partition.
    
      Moore v. Littel (41 FT. Y., 76) followed.
    Appeal from an order made in an action brought for the partition of certain real property between the plaintiff, a child of Ellen H. Keith, and the defendants (who are the said Ellen H. Keith, one Shades, a tenant, and seven others, the other children of Ellen H. Keith), claiming title thereto under the provisions of the will of Arabella Baldwin, by which the property was given to Ellen H. Keith, a daughter of the said Arabella Baldwin, to have and to hold the same during her natural life, and, after her death, to “ the heirs of the body of said Ellen H. Keith whom she shall leave her surviving.”
    The action was brought during the lifetime of Mrs. Keith.
    A motion was made in the progress of the action, to confirm the report of a referee, and for an order directing a sale of the property.
    
      The court, at Special Term, denied the motion, on the ground that, as the plaintiff was neither in possession nor entitled thereto, she could not maintain the action.
    
      L. A. Haywa/rd, for the appellant.
    1st. The plaintiff in this action has a vested remainder in fee in these premises. (Moore v. Littel, 41 N. Y., 76; Howell v. Mills, 7 Lans., 193; Mead v. Mitchell, 17 N. Y., 213.)
    2d. She has such possession as entitles her to institute proceedings for partition. (Blakeley v. Calder, 15 N. Y., 617; Burhans v. Burhans, 2 B. Ch., 408; Jenkins v. Van Schaack, 3 Paige, 242; Howell v. Mills, 7 Lans., 193.)
    3d. It is no objection to this action that the estate of the plaintiff is liable to be divested by her death. (Howell v. Mills, 7 Lans., 193 ; Mead v. Mitchell, 17 N. Y., 217 ; Moore v. Littel, 41 N. Y., 82, 83.)
    In Clemens v. Clemens (37 N. Y., 70), and also in Adams v. Fox (40 N. Y., 580), the case of Mead v. Mitchell is cited with approval.
    
      L. W. Thayer, for infant respondents.
   Gilbert, J.:

If the decision of the Court of Appeals, in Moore v. Littel, is to be taken as a correct exposition of the law, the devise in this case, to “the heirs of the body of Mrs. Keith whom she shall leave her surviving,” created a vested remainder in fee, in the present plaintiff, and her brothers and sisters. No sensible distinction on this point, can be drawn. between the two cases. Such remainder is liable to open and let in after-born children of Mrs. Keith, and is liable also, in respect to the share of any child now living, to be defeated by his or her death before the death of Mrs. Keith. Such is the rule of law laid down in Moore v. Littel. It is a rule of property. We have no alternative but to follow it, whatever may be our own views of its correctness.

The future contingent interests of persons, not in esse, may be effectually barred by a sale under a judgment in partition.

If, therefore, a suit in partition may be maintained in behalf of a vested remainderman, the order appealed from is erroneous. Partition between tenants in common of real estate, is matter of right by common law as well as by statute.

And it must now be deemed settled, that one, who is entitled to a vested remainder in lands, is in possession of his undivided share, within the meaning of the statute, notwithstanding there is a life estate, covering the whole premises, and the tenant for life is in actual occupancy thereof.

It follows that the order appealed from must be reversed.

Order reversed. 
      
       41 N. Y., 76.
     
      
       Mead v. Mitchell, 17 N. Y., 210; Clemens v. Clemens, 37 id., 59; Noble v. Cromwell, 27 How. Pr., 289; Brevoort v. Grace, 53 N. Y., 245.
     
      
       Allen on Part., 4, 78, 87; Smith v. Smith, 10 Pai., 470; Van Arsdale v. Drake, 2 Barb., 599; Haywood v. Judson, 4 id., 228.
     
      
       Howell v. Mills, 7 Lans., 193, and cases cited; S. C., Court of Appeals, MS.
     