The only question presented upon this appeal is, whether a trustee of land under a valid trust to receive the rents and profits of said land and apply them to the use and support of an infant, until such infant arrives at the age of 21 years, with an absolute power to sell such land and invest the proceeds thereof for the benefit of such infant, can institute a suit in equity to partition said lands held in common with other persons of adult age.
By the common law, as well as under the statutes of this State, partition between tenants in common of real property is matter of right, when either of said parties will not consent to hold and use such property in common. (Smith v. Smith, 10 Paige, 473. Van Arsdale v. Drake, 2 Barb). 600. 2 R. S. 317.) The provision of the Revised Statutes, section 1, requires that the party applying for partition be of full age. This is the only restriction upon the absolute right of a tenant in common, or joint tenant, to institute the suit or proceeding by petition. The statute of 1852, entitled “An act in relation to the partition of land,” takes away this restriction, and authorizes any infant possessed of real estate as tenant in common, or joint tenant, to institute such proceedings in the Supreme Court by leave of that court. But, independent of this provision, I can see no reason why the plaintiff cannot maintain this action. She is of full age, and seised of the premises, and is vested with the whole estate, subject only to the execution of the trust. (1 R. S. part 2, ch. 1, § 60.)
The person for whose benefit an express trust is created under this statute, and as allowed in section 55, ‘ ‘ takes no estate or interest in the land, ’ ’ but may simply enforce the performance of the trust in equity. (Id. § 60.) Section 1 of the statute providing for the partition of land, (2 R. S. 317, supra,) provides that when several persons shall hold and be in possession of lands, &c., as joint tenants or tenants in common, any one of them *588may have partition, with the qualification above stated. This plaintiff holds and is in possession of the lands of which partition is sought, in common with the defendants. She is within the precise terms of the statute. Certainly either of the defendants could have partition here, and I can conceive no reason why the plaintiff may not. The plaintiff might sell these lands, and invest the proceeds under the power conferred upon her in the deed of trust. But the partition of lands held in common by and under the authority of this court is not the exercise of a power. It is merely the division of the common lands for the mutual benefit of the parties interested therein, that each of the tenants in common may separately enjoy, use and improve his own part and parcel thereof. It may be greatly for the interest and benefit of the trust estate, in this case, that the plaintiff have such right of separate use and enjoyment of her one-fourth of this property. At least the plaintiff is clearly entitled to exercise her own judgment and discretion upon the question.
[Fourth Department, General Term, at Buffalo, June 3, 1873.Mullin Talcott and M. D Smith, Justices.}
I think the judgment should be reversed, and the defendants allowed to answer upon the usual terms.