Epley v. Epley

Will — Partition—Executors— Tenants in Common — Possession — Pleadings. 1. A will by which land is devised to C, for life, and after her death it is to be divided among children, does not authorize a sale by the executors. % When a petition of tenants in common for sale of land fails to allege possession, objection made for the first time in the Supreme Court will be disregarded.

This was a special PROCEEDING for partition of land, heard on appeal from Clerk before Armfield, J., at Fall Term, 1892, of Burke Superior Court. This action was brought by plaintiffs as heirs -at law and devisees of Peter Epley for a partition of the lands known as the Catharine Epley tract. That Peter Epley, Willis Epley, James Epley and Fannie Morrison (wife of John Morrison), the plaintiffs above named, .and John Epley, Jacob Epley and Mary Parker are tenants in common in fee of the tract of land hereinafter described, ■each owning an undivided one-seventh interest therein in fee. The defendant’s executors answer, and allege— 1. That the Clerk has no jurisdiction in this action, for the reason that the same involves a construction of the will of their testator, Peter Epley. 2. That the will of their said testator (see record, pages 2R to 29, inclusive) authorized and empowers them to make sale of said lands, which they are proceeding to do under said» will, and the plaintiffs are therefore not entitled to partition in this proceeding. His Honor being of opinion that the Clerk had jurisdiction,, and that the will of Peter Epley did not authorize a sale of said land by said executors, gave judgment accordingly, to which judgment and rulings defendant excepted, and appealed; to the Supreme Court. 8. That the petition is insufficient and fails to show a,ny right to partition by plaintiff, in that it does not allege that any or either of them are in the possession of the land which, they seek to divide.