30 N.Y.S. 803 | N.Y. Sup. Ct. | 1894
In a suit for partition the case is this: John Maier and Michael Banzer were tenants in common. Maier conveyed his undivided moiety to Susanna, the wife of Banzer. Then Banzer executed a will disposing of his property, in these words:
“First after all my lawful debts are paid and discharged I give and bequeath to my beloved wife, Susanna Banzer, all my real and personal estate now at present and hereafter in my possession; my real estate consisting at present of a part of a house known by the number 220 West Thirty-second street, Twentieth Ward, so as described in the deed of said house; and my personal estate, and whatever belonging to me at my dead; whatsoever and wheresoever, of wat nature, kind and quality soever may be, that she shall have undisputed right, to do and dispose, acording her own judgment, that after her, dead, my beloved children or their executor, administrator shall divite the same chair and chair alike.”
Under and by virtue of the last clause, not otherwise, the plaintiff claims as cotenant with the defendants. Counsel for the defendants objects that Michael and Susanna Banzer were tenants by the entirety, and, if such indeed was their estate, it could not be the subject of partition. 4 Kent, Comm. 363; Den v. Hardenbergh, 10 N. J. Law, 42; Thornton v. Thornton, 3 Rand. (Va.) 179; Code Civ. Proc. § 1532. But the position is untenable. It is only by a conveyance to husband and wife that they take as tenants by the entirety. Steltz v. Schreck, 128 N. Y. 263, 28 N. E. 510; Miner v. Brown, 133 N. Y. 309, 31 N. E. 24; Wright v. Saddler, 20 N. Y. 320, 323; Hulett v. Inlow, 26 Am. Rep. 64, and note; In re Bramberry’s Estate, 36 Am. St Rep. 64, and note, 27 Atl. 405; Den v. Handenbergh, 18 Am. Dec. 383, note. If a man and woman, holding an estate as cotenants, marry, they will continue to be joint tenants or tenants in common, as before marriage. Moody v. Moody, Amb. 649; McDermott v. French, 15 N. J. Eq. 80; 4 Kent, Comm. 363. John Maier conveyed to the wife, not to husband and wife. Taking but the interest of Maier, Su. sanna Banzer became cotenant with her husband (Joos v. Fey, 129 N. Y. 17, 29 N. E. 136); as such, was seised only of her grantor’s estate, and of that in several and distinct freehold (4 Kent, Comm. 367). The husband continued owner merely of his original share, and no privity of estate subsisted between him and his cotenant wife. Id. 368. If marriage between joint tenants or tenants in common be inoperative to create an estate by entireties, a fortiori does such effect not follow a conveyance to the wife alone by the. husband’s cotenant.
Plaintiff’s counsel contends, however, that, by virtue of the limitation over in the will of Michael Banzer, she is a cotenant with the •defendants, and so entitled to partition. If cotenant at all, she is cotenant only of Michael Banzer’s moity, for it was of his own interest merely that he was capable of disposing, the other moiety being the property of Susanna Banzer. Upon the construction of the will before me, the conclusion is clear that the entire and absolute estate
My conclusion is that the limitation is invalid for repugnancy to the previous devise of the entire and absolute estate; and, since the only claim of interest in the property by the plaintiff is by virtue of that limitation, it results that the complaint must be dismissed on the merits. Judgment accordingly, with costs.