delivered the opinion of the court.

The petitioners represent, that they are the children of Thomas Kemp, and as his representatives, entitled to inherit a part of the succession of his brother David Kemp, who died after their father. That while they were minors, partial and informal distributions of a part of the property was made, but that no legal partition ever took place among the co-heirs. *520That a part of the property belonging to the estate has been purchased by Abner Wamack, of one of the heirs, and is liable to partition in his hands. This suit is brought for a final judicial partition, and Wamack was made a party.

Wamack pleads to the jurisdiction of the Court of Probates, and the co-heirs set up the former partitions as having the force of the thing adjudged. The probate judge annulled the former partitions, and confirmed the title of Wamack under one of the co-heirs.

It is admitted of record in this court: 1. That the second partition complained of was made as set out, and that the act evidencing-the fact was given in evidence by both plaintiffs and defendants.

2. That the plaintiffs in this action were not parties to the act of partition.

3. That the property partaken was the same mentioned in the procbs verbal of the formation of lots, and on record in the suit.

We concur with the Court of Probates in opinion that the two partial and provisional distributions of property among the co-heirs do not amount to a final and definitive partition of the estate. It is clear that those proceedings are not conclusive upon the present plaintiffs, who were not parties. It follows as a corollary, that the property yet in possession of any of the co-heirs is liable to partition, but it by no means follows that the portion of the property alienated by one of the beirs, and in possession of third persons, can be brought into the partition by authority of the Court of Probates. Although Wamack acquired really no greater right than that of the co-heir under whom he holds, yet, the Court of Probates was without jurisdiction to inquire into the validity of bis title; and as he does not hold as heir, that court was without jurisdiction as to him. His exception ought, in out-opinion, to have been sustained.

As it relates to the heirs who were of age at the time of these partitions, they have no right to complain, and so far as they are concerned, those acts out to be made valid. But (he minors and those who were not parlies are not concluded, *521and their portions ought to be made up to them according to principles of equity. Such partial and informal divisions of property ought not to be treated as absolute nullities, espedaily when they have been acquiesced in for a series of years; and while the rights of minors are to be protected, other vested rights are, if possible, to be maintained. In cases or this kind, where it is probable the parties acted in good faith, though not in a manner strictly legal, it is much to be lamented that such difficulties cannot all be adjusted by amicable compromises, rather than by appealing to the rigors of the law.

r . , _ . , It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates, so far as it relates to Abner Wamack, be avoided and reversed, and that the plea to the jurisdiction of the Court of Probates, as to him, be sustained, and the suit dismissed, and that it be affirmed as to the rest; the appellees paying the costs of the appeal; and that it be remanded to the Court of Probates for further proceedings, according to law.