majority">Mr. Justice Morris

delivered the opinion of the Court:

Two principal questions are raised in the case: 1. Whether under the will and codicil of Benjamin Newton the children of Charity Marshall took a vested remainder, in fee simple, in one-fourth undivided part of his property which could not be divested or affected by any action of Charity Marshall, in conjunction with the other children of the testator; and 2. Whether the action of the children of Charity Marshall, in the equity suits that have been mentioned, constituted an *193estoppel that should preclude them from maintaining the present suit.

1. With reference to the first question, it is argued on behalf of the appellant that, under the will and codicil of Benjamin Newton, his daughter Charity Marshall took only a life estate, and her children living at the time of the execution of the will and codicil a vested fee simple estate in remainder subject to open and let in other children thereafter born; that the interest which the life tenant and remaindermen took in the estate of the testator was an undivided one-fourth part, or portion; and that no partition entered into by the life tenant could bind the remainder-men. On the part of the appellee it is argued that by the will, without reference to the codicil, Charity Marshall received, or was to receive, one-fourth part of the testator’s estate; that this estate was to be divided equally, upon his death, between his four children as tenants in common; that, it was for them to divide the estate as they thought proper; and that the only effect of the codicil was to limit such portion as Charity Marshall might take to a life estate for herself and a vested remainder in fee in her children.

We fail to appreciate the force of the appellee’s contention.. It is ingenious, but unsound. The will and codicil of Benjamin Newton must be taken together; and so taken, they clearly and unmistakably evidence the purpose of the testator to modify his first disposition in favor of his daughter Charity Marshall, and to substitute for the absolute fee simple which wras given to her by the original will a life estate for herself and a vested fee simple remainder in her children. This is nothing so unusual or so extraordinary that we are deprived of the guidance of the well-known rules of the law applicable to such cases. The estate which Charity Marshall and her children took was plainly an undivided interest in the estate of the testator; and there was no power given by the will and codicil, when taken together, to Charity Marshall, either expressly or by implication, to convert that undivided interest *194of a tenancy in common into an estate in severalty in herself, as she attempted to do, or into an estate in severalty in herself and her children, as she might more plausibly have sought to do, so far at least as thereby to bind the rights of her children. What she did she purported to do exclusively for herself, and not at all for her children; and so far as we are informed by the record, it is not apparent that the piece of property which was set off to her, in fee simple, might not have been regarded as the equivalent in value of her life interest in the one-fourth undivided part of the testator’s estate. The children were entirely ignored in this alleged partition transaction; and yet, if upon the death of Benjamin Newton they became immediately entitled to a vested remainder, in fee simple, in the one-fourth undivided part of his estate, as it is very clear to us they did, it is not quite apparent to us how that vested remainder could be shifted about at will, or even destroyed, as it would seem it was sought to do, by the action of a life tenant whose estate was in a measure antagonistic to their estate. Charity Marshall was not authorized to act for her children in the matter of the partition of the estate of Benjamin Newton; and there is nothing but inference, and no inference even of a positive character, to show that she ever assumed to act for them. If partition is desired in a case of this kind, the law points out very clearly the course that can be pursued for the purpose. It does not allow that infants should be deprived of a vested fee simple in remainder in an undivided estate by the action of a life tenant, taking a portion of that estate to herself, in fee simple.

We do not deem it necessary to pursue this question farther. We are strongly of opinion that the fee simple interest in the estate of Benjamin Newton, now claimed by the children of Charity Marshall, was not affected by the action of the latter in the attempted partition proceedings of February 14, 1871.

2. The question of estoppel would be a more serious question in this case, if the facts were sufficient to constitute an *195estoppel. But the equity proceedings offered in evidence by the defendant, and from which it is sought to raise such an estoppel, and to show an intention on the part of the children of Charity Marshall to confirm and ratify the partition proceedings made by her, fail utterly to show any facts upon which an estoppel can be raised. Apart from the fact to which we have already adverted, that Charity Marshall, in the partition proceedings referred to, purported to act for herself alone, and not for her children, and that therefore there do not appear to have been any partition proceedings that could have been the subject of ratification by her children, there is nothing whatever in the equity proceedings that have been mentioned from which a ratification can be inferred. The bills in both cases purport to have for their purpose the sale, presumably for the purpose of partition, of the interest of the parties in two specified pieces of property under the will and codicil of Benjamin Newton. This statement,so far from being a ratification ofthe partition attempted bythe deeds of February 14,1871, should rather be regarded as a distinct and positive repudiation of any such partition. If it were the intention or the effect of these equity proceedings to ratify and confirm that partition, the property mentioned in the two bills should have been treated as the property of the persons to whom it had been assigned in the partition, and from whom, if the partition were valid, the parties to the two suits would have received it by inheritance, and not under the will and codicil of Benjamin Newton. It is proved that not until after these suits had been determined did the children of Charity Marshall have any knowledge of the attempted partition of 1871; and it is not apparent that it would have made much difference if they had known of it, when they proceeded upon a theory totally inconsistent with any idea of the ratification with which it is now sought to charge them. We are unable to see how a suit in equity between devisees and heirs at law of Benjamin Newton to sell real estate claimed by them to be vested in them from him, under his will and the codicil thereto, can be *196construed into a ratification of a partition, alleged to have been made of his estate, when there is no reference to any such partition or to any claim of title from or through any partitioner thereunder. On the contrary, as we have intimated, if the children of Charity Marshall had distinctly sought to repudiate the partition, they could not well have done so more appropriately than was done in these suits.

It is very true that the bills of exception in this case set forth the fact, in connection with the first mentioned equity suit, that the property therein specified and desired to be sold was the same property that had been assigned to Daniel P. Newton by one of the partition deeds of 1871; and in connection with the second equity suit, that the property therein mentioned was the same that had been assigned to Charity Marshall by one of the same partition deeds. But so far as we can judge from the record, these identifications were made at the trial in the present cause, and not in the equity suits; and there is nothing to show that there is any reference whatever in the equity suits, direct or indirect, to the matter of the partition of 1871, or to the rights or claims . of any person thereunder.

We fail, therefore, to find in this cause any ground for the application of the doctrine of estoppel. If the defendant has ground to believe, what the record before us does not show, that the children of Charity Marshall have received their just share of the estate of their grandfather, and that it would be inequitable for them to prosecute their claim to the property held by the defendant, the latter is not without remedy to procure appropriate relief.

We can find no law that in our opinion can sustain the ruling of the court below, and we must regard that ruling as erroneous. The prayer of the plaintiff should have been granted, and the prayer of the defendant refused. For this error the judgment of that cowrt must be reversed, with costs ; and the cause must be remanded to that court with directions to set aside the verdict and to award a new trial; and it is so ordered.

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