By the Court,
Nelson, Ch. J.The judge was right in refusing to nonsuit the plaintiff on the ground that she had' not proved herself in possession of the premises, because for aught that appeared she was in possession, if the construction of the will contended for by her was correct. Possession would follow the legal title, no adverse possession having been shown. The provisions of the statute, 2 R. S. 317, 320, § 1, 16, upon which the motion was probably founded, do not require a pedis possessio to entitle a party to institute proceedings in partition.
The only material question in the case turns upon the will of the plaintiff’s husband, in respect to the estates of his son Daniel and his wife, and of their daughter Jane. The testator directed his executors to retain in their hands “ the one half of lot No. 137, containing sixty acres of land, for the use of D. B. and ‘ his wife during their natural lives’ ” —and after directing that he should pay the annual rent reserved on it, he devised to Jane, after the decease of his son Daniel and his wife, “ the equal undivided half of said lot to her and her heirs forever.” The lot No. 137 contained about 120 acres, only the west half of which belonged to the testator ; and it is insisted that he intended to devise but a moiety of this half to his son Daniel and his wife ; and of course a third of the other moiety would pass under the will to the plaintiff. It appears to me the clause will not bear this interpretation—the words define naturally and distinctly, his whole interest both by a general and particular description—“the one-half of lot No. 137, containing sixty acres of land.” The specification of the acres embraced in the one-half of the lot, clearly indicates what the testator meant by the use of this general phrase, if a doubt could otherwise have been raised upon it, under the circumstances. He must have intended to describe his entire interest. Nothing short of this can satisfy the words. The plaintiff is obliged to contend that when the testator uses the terms the one *370half of lot No. 137, he means only a moiety of the half —anc[ w] len he says sixty acres he means but thirty. Even if the draftsman could have committed so great a blunder as to have used the terms half the lot, when he was endeavoring to define but a moiety of the half, we should suppose, in the further description of it, he would have been more successful in giving the acres for if the moiety of the half had been in his mind, he would naturally have given 30 instead of 60 acres as the quantity of land intended to be devised. Instead of this, the only description given is one half of the lot, containing 60 acres—being the number supposed included in it. We may remark also, that the clause immediately following the devise confirms the above view. The testator adds, “ the said Daniel must pay the annual rent reserved in the lease of said land.”—What land ? that of course just described, and the lease covered the whole of it. It is not necessary to express an opinion upon Jane’s interest ; for conceding to the plaintiff an interest in remainder—which may be doubtful—I do not see how partition can now be made. She is not now entitled to the possession, and will not be so entitled until after the termination of the estate for lives; and a partition now made, may be a very unequal one then. Indeed, the statute requires that the petitioner should be in possession; that is, he must have at the time of presenting his petition, either actual or constructive possession of the premises. It is true as suggested by the plaintiff’s counsel, that the statute, § 16, p. 320, seems to contemplate that this objection should be set up by way of plea, specially denying the fact, and which having been omitted here, would consequently lead to a judgment of partition in favor of a party who has shown only an estate in remainder to take effect after two lives, and therefore no present right of possession. But it appears that the same defence is available under the plea of non tenent insimul, which has been put in, as is satisfactorily shown upon reason and authority by Chancellor Jones, in Clapp v. Bromagham, 9 Cowen, 561, 573.
As the verdict was taken for the plaintiff, subject to the opinion of the court, the defendants are entitled to judgment.