Buhrmeister

The action was for partition, and the appeal is from the interlocutory judgment.

The only point urged hy appellant is that the action was prematurely brought. On February 18, 1903, H. G. Buhrmeister died testate, devising in equal shares the property sought to be partitioned to his six children, including appellant and respondent. By the terms of the will, as stated by appellant, plaintiff was given the use and occupation, rents, issues and profits of said property for five years immediately after the death of the testator at the annual rental of $300, $60 to be paid to each of the other five devisees annually by said plaintiff. These other devisees were directed by the testator, in his will, to execute to respondent a lease of the real property for the terms and upon the conditions already named. The said property was distributed to the six children in accordance with the terms of the will “at the expiration of the term of five years from the eighteenth day of February, 1903, or sooner determination of the right to the use thereof above vested in Wallace Buhrmeister. ’ ’ Plaintiff was in possession under said, leasehold right until February 18, 1908, and during the years 1905…