Hill v. . Jones

Clark, J.: By the terms of the will, no part of the real estate was to be sold or disposed of until the youngest child should become of age, and then it shoiild be divided in manner specified. Until that time, the husband should occupy the premises and use the surplus of income from the realty after paying for necessary repairs thereon and the education of the children, in such manner as he should deem best, without being required to render any account thereof. The youngest child has not become of age, and the question intended to be presented, whether the purchase of the share of one of the devisees now deceased (under a mortgage made by him on his undivided interest) is entitled to recover, cannot now arise. If such devisee were alive, he could not claim possession or partition till the youngest child became of age, and of course his mortgagee could acquire no greater right, even if the devisee possessed such an interest as could be mortgaged, as to which we express no opinion. In dismissing the action there was No error.