The opinion
DeviN, J.,
dissenting: Annie L. Owens devised land to her sons and daughters “and then to their children.” It is agreed that this constituted a life estate in her children, with remainder to her grandchildren, and that the terms of the will were such as to permit the opening up and inclusion within the devise of those grandchildren born subsequent to the death of the testator.
The special proceeding instituted in 1909 before the clerk to sell the interests of the infant remaindermen, on the ground that it would be to their interest to do so, with the approval of the judge was sufficient to authorize the sale, and to bar those then in being, but I do not think this proceeding should be held to bar children yet unborn. However, most of the grandchildren not then in esse are now barred by the defendants’ adverse possession under color, and by the statute of limitations. But one of the plaintiffs was born nine years after the special proceeding was concluded, and came of age only a few months before this action was instituted in 1940. I cannot agree that upon any principle of representation this plaintiff can be held barred of the inheritance devised him by his grandmother. Three other plaintiffs appear to be similarly situated.
ClaeksoN and Sea well, JJ., concur in dissent.