While the petition describes all the land of which the testator died seized and possessed, it does not appear that those now in possession of the tract allotted to Mrs. Moore were made parties to this proceeding. Defendant Sallie Baker Everett is now in possession of the Hyman share. So that in fact this proceeding is prosecuted for the purpose of asserting title as tenants in common to the Martha Norman Baker and the Hyman parcels as described in the partition deed.
Plaintiffs, remaindermen, were not parties to the partition deed executed by the life tenants.' It does not appear that any of them were *501 in esse at tbat time. Certainly most of tbem were still unborn. Are they bound by the partition deed and now estopped thereby to assert title to the land in controversy ? This is the primary question presented on this appeal.
Ordinarily, remaindermen are not bound by a partition by the life tenants alone. But when the life estates are created by will and the power to partition is vested in the first takers or executors and the respective shares of the life tenants pass to the childern of the first taker, the remaindermen are not necessary parties to the partition proceeding.
We are constrained to hold that the facts appearing on this record invoke the application of the latter rule. Collier v. Paper Corporation, 172 N. C., 74, 89 S. E., 1006; Interior & W. V. R. Co. v. Epling, 73 S. E., 51 (W. Va.) ; Lamkin v. Hines Lumber Co., 124 S. E., 694 (Ga.).
In the devise to his daughters for life with remainder to the children of each per stirpes, testator provided that: (1) the property was not to be divided but was to be held as common stock during the spinsterhood of the daughters or either of them; (2) upon the marriage of the last daughter the property was to be divided; (3) upon the death of either daughter, her share was to go to her children and their heirs absolutely. Greene v. Stadiem, 198 N. C., 445, 152 S. E., 398.
Thus there was a specific direction for a division at a specified time coupled with the gift. The division was to be had upon the marriage of the last daughter — a time when it was impossible to ascertain who might take in remainder. The children of each daughter were to take her share. The respective shares in severalty were to pass to the children of the first taker.' The division was to be made among the life tenants and the children succeeded to the shares so allotted. Collier v. Paper Corporation, supra.
“The will gave to each daughter a life estate in the parcel that should fall to her in the equal division which the testator directed should be made among them. As to the parcel so allotted each daughter for life, her children were to take in remainder. . . . And clearly, those remainders reasonably refer to the parcels of land as allotted to the daughters.” Interior & W. V. R. Co. v. Epling, supra.
Whether the executors or the life tenants are the donees of the power to divide is, on this record, immaterial. The sole surviving executrix was a party to the partition deed which made specific reference to the directions contained in the will. The deed was likewise executed by each of the life tenants.
It was not essential that the partition he had by court proceeding. Partition by deed is a recognized method of effectuating a separation of interest in property held in common. Collier v. Paper Corporation, supra.
*502Nor was the assessment of an owelty charge against one share in favor of another a fatal departure from the power conferred in the will. The will contemplated an equal partition according to value. Lee v. Montague, 173 N. C., 226, 91 S. E., 834. Oftentimes such cannot be had in kind without injury to the parties. Equality in value must be afforded by the assessment of an owelty charge. G. S., 46-10 (C. S., 3222). There is no allegation or proof of mutual mistake or fraud. Hence, if there was inequality in value of the lands allotted to the respective life tenants by the partition, they alone could complain of it. Collier v. Paper Corporation, supra. The children of each take what their mother agreed to accept.
The partition was had in 1882. Each life tenant immediately entered into possession of the share allotted to her. No protest or complaint was voiced by either of them. Protest now by the remaindermen, sixty years after the partition, comes too late, if, indeed, the right of protest ever rested in them.
Plaintiffs have little cause to complain. The Hyman children executed a deed to the share allotted to their mother. The youngest Hyman child became of age in 1917. No one of them sought to disavow the validity of their deed before the institution of this action. Thus they ratified the partition agreement. The Moore children, knowing that their mother had conveyed the parcel received by her, delayed action after her death until any possibility of bringing that share into hotchpot to assure a present equal partition had expired. “We waited until the last minute before seven years ran out” after the death of the mother. Even then they did not make the mother’s grantee a party to the proceeding. Their present position is untenable and could not be sustained in any event.
The court below, in its charge, correctly construed the rights of the parties. The verdict and judgment must be sustained.