
    JOSIAH H. REEVES, APPELLANT, AND ENOS P. REEVES AND JACOB P. REEVES, RESPONDENTS.
    A father devised to his three sons certain lands, as tenants in common during their natural lives, and after the death of either of them, his share to go to his lawful issue; and if any of his said sons should die without leaving lawful issue, bis share to go to the survivors of them; or if any of them have deceased, their lawful issue to have the share that would have gone to their father if living. Held, that no partition could be made among the sons except of their present interest or estate in the lands.
    This is an appeal from a decree of the Orphan’s Court of the county of Salem, directing the division of certain lands devised by the will of Stephen Reeves, deceased, among the devisees thereof.
    The will of Stephen „ Reeves, deceased, late of the county of Salem, devises to his three sons, Enos P. Reeves, Jacob P. Reeves and Josiah H. Reeves, certain lands, (described in the will,) “ all which said lots and tracts of land, buildings, mills, waters, improvements, hereditaments, and appurtenances herein given and devised io my said sons, Enos P. Reeves, Jacob P. Reeves, and Joseph H. Reeves, 1 do devise and give to them, as tenants in common during their natural lives, which, after the death of either of them, the said share of the said deceased son to go to their lawful issue; and if any of my said sons shall die without leaving lawful issue, then their share to go to the survivors of the said three ; or, if any of them have deceased, their lawful issue to have the share that would have gone to their father, if living.”
    On the petition of Enos P. Reeves and Jacob P. Reeves, to the Orphans’ Court of Salem, stating that the said testator died leaving a will devising to his said three sons the following described properly, tracts, and pieces of land (describing them), “all of which, &c., I do devise and give to them as tenants in common, &c.,” without setting out the will more particularly, and staling that said Josiah H. Reeves is a minor — under the age of twenty-one years — and praying that the said court order and direct a division of such real estate, in fee, to be made agreeably to the true intent and meaning of the said will, and appoint commissioners to ascertain the metes and bounds of each devisee’s aliare, according to law. The said Orphans’ Court, in August, 1846, made an order as follows (after reciting the said application): “ And it now appearing, by the will of the said Stephen Haines, that he did devise the above-named property to Enos P. Reeves, Jacob P. Reeves, and Josiah H. Reeves, and that Josiah H. Reeves, one of the said devisees, is under the age of twenty-one years, it is ordered and decreed that a division of said lands be made as follows, to wit, to Enos P. Reeves one-third part thereof in fee j Jacob P. Reeves, one-third part thereof in fee, and Josiah H. Reeves, one-third part thereof.” The order then appoints commissioners to make division, and concludes thus: “ which division shall be conclusive to all parties concerned, as well the present as the remainder-men.
    
      A. L. Eakin, for the appellant,
    cited 1 Green’s Rep. 284; Halst. 94; Coxe N. J. Rep. 3; 3 John. 20; 4 Halst. 93.
   The Ordinary.

If there could be a division of the fee among these three sons, each might receive, in fee, the share allotted to- him. But the will provides that if either son die without leaving lawful issue, his share shall go to the survivors, &c. No division among the three sons can operate to give each-a present fee. The terms of an order for division in this case should be confined to the present interest or estate of the sons.

Decree reversed.  