The opinion
Stacy, C. J.
Two questions are presented by the appeal:
1. Do the children of the present life tenants take vested remainder interests in the property in question subject only to open up and let in after-born children, if any, of one or both of the present life tenants?
Lumber Co. v. Herrington,
183 N. C., 85 , 110 S. E., 656 .
2. Does the provision “that the said children shall hold said property in common until the youngest of said children shall arrive at the age of 21 years” preclude a division or partition of said lands at the present time, all parties now living having consented, in a. proceeding instituted for the purpose, that the children of Mrs. Reba Byrd should be allotted the northern store subject to the life estate of their mother, and the
*447
children of Mrs. Retha Blow the southern store subject to the life estate of their mother, and that the after-born children, if any, of Mrs. Reba Byrd should share only with their brothers and sisters in the northern store, and the after-born children, if any, of Mrs. Retha Blow should share only with their brother and sisters in the southern store?
Conceding, without deciding, that the testator’s grandchildren, children of his two daughters, Reba and Retha, take vested remainder interests in the property in question
(Green v. Green,
86 N. C., 546 ), and conceding further that by consent those now living and
sui juris
máy disregard the testamentary provision requiring said property to be held in common until the youngest of said children shall become of age,
non constat,
unless said testamentary postponement of partition be void, or contrary to public policy, the division or partial partition, entered by consent, would not be binding on the children under age or on any child or children that may hereafter be born to either of the present life tenants, for as to them the proceeding was adverse and the consent judgment entered in the partition proceeding is in direct violation of the terms of the will. Mrs. Reba Byrd and her children are not parties to this proceeding, though they were parties to the partition proceeding in which the plaintiff was appointed commissioner to sell the
locus in quo.
It is the contention of the plaintiff that the testamentary postponement of partition in question is void because in restraint of the full enjoyment of the fee. This view prevailed in the court below upon the theory that it was a restraint on alienation and, therefore, void.
Combs v. Paul
191 N. C., 789 , 133 S. E., 93 ;
Brooks v. Griffin,
177 N. C., 7 , 97 S. E., 730 ;
Wool v. Fleetwood,
136 N. C., 460 , 48 S. E., 785 ;
Latimer v. Waddell,
119 N. C., 370 , 26 S. E., 122 .
But a testamentary provision, prohibiting or postponing partition, for a definite time, or during the minority of the devisees, is not regarded as a restraint on alienation, or limitation repugnant to the fee, and is generally upheld.
Blake v. Blake,
118 N. C., 575 , 24 S. E., 424 ;
Peterson v. Damoude,
98 Neb., 370 , 14 A. L. R., 1238, and note.
Speaking to the subject in
Dee v. Dee,
212 Ill., 338 ,
Scott, J.,
delivering the opinion of the Court, said: “The general rule is that an adult tenant in common may demand partition as a matter of right
(Martin v. Martin,
170 Ill., 639 ); and the fact that he is a remainderman and that the particular estate has not expired is not a valid objection
(Drake v. Merkle,
153 Ill., 318 ); hut equity will not award partition at the suit of one in violation of his own agreement or in violation of a condition or restriction imposed upon the estate by one through whom he claims (21 Am. & Eng. Ency. of Law, 2 ed., 1158;
Hill v. Reno,
112 Ill., 154 ;
Ingraham v. Mariner,
194
ibid.,
269;
Brown v. Brown,
43 Ind., 474 ;
Hunt v. Wright,
47 N. H., 396); nor is such a condition or re-
*448
strictiou in tbe instrument conveying tbe estate invalid as repugnant to tbe estate granted, or as against public policy.
Hunt v. Wright, supra.”
It is true, tbe guardian
ad litem
of sucb child or children, if any, as may hereafter be born to Mrs. Retba Blow, did not resist tbe judgment of partition, but it should be remembered that the tenants in fee of tbe property in question all derive their interests from tbe will of John L. Nelson, and while tbe restriction in question may, in tbe judgment of some, be unwise, nevertheless it is bis will, and tbe provision is valid. Note 14, A. L. R., 1240.
It should be observed, perhaps, that tbe parties are not undertaking to sell tbe land in question for reinvestment. C. S., 1744.
It follows, therefore, from this view of tbe case, in keeping with tbe agreement under which tbe controversy was submitted without action, that tbe same should be dismissed unless title in accordance with tbe partition decree could be given, that the action must be dismissed.
Action dismissed.