¶1The court is of the opinion that the plea should be overruled.
¶2The bill in 3367 is simply a bill for partition of the land therein described, setting forth that by reason of the size of the lot and the location and character of the buildings on it, it cannot be divided by metes and bounds without great and disproportionate injury to its owners and depreciation in value of their several rights and interests therein; it prays also, besides partition, for the appointment of an ad interim receiver to care for and manage the estate. It is true that it recites the fact that two undivided thirds of the land of which partition is sought is subject to a charge for the support of Charlotte R. Dodge, but it prays for no specific determination of the rights of said Charlotte with reference to such charge, but only for a division of the proceeds of the sale, in case the court should order partition by sale, among the respondents to the bill in such manner as the court shall determine and decree. There is no suggestion that the receiver, when appointed, shall apply any portion of the income of the property to the support of the said Charlotte.
¶3The bill in 3438 is brought by said Charlotte to determine the amount she is entitled to under the charge, the manner in which it shall be paid, and also for an order directing and enforcing the payment, while the charge exists.
¶4The two suits, it is evident, are for different purposes. The former does not necessarily embrace the matters which *7 form the subject of the latter. The complainant is entitled to support out of the two thirds of the land charged therewith, whoever may be the owner. Partition by sale may be made subject to the charge.
¶5The respondents then filed their answers. October 9, 1893, Walter C. Dodge, also a beneficiary under the charge created by the will of Charlotte D. Dodge, preferred a petition for leave to intervene in the suit of Charlotte R. Dodge, and, the petition being granted, filed a bill by his next friend, December 1, 1893, as a party complainant in the suit, to enforce the charge in his favor. The respondents filed answers thereto in which they each set up a plea of the statute of limitations. The plea was overruled, and after further argument, the following decision rendered.
¶6June 1. 1894.