2 Barb. Ch. 314 | New York Court of Chancery | 1847
The master has clearly mistaken the rights of the children of Garret Schermerhorn, and of those claiming under them, in relation both to the Charlton lands and to the two lots of land in Glen’s patent. He is right in supposing that the present owners of the Charlton lands are entitled to hold, by adverse possession, the one-sixth of their several lots, which was undisposed of by the will of the testator in consequence of the death of his son John without issue. For, upon the death of John, forty years since, the remainder in fee in that one-sixth, became vested in his four surviving brothers and his sister, who had an immediate right to bring ejectments for the recovery of the same.; except so far as the persons in possession were entitled to protection under their respective covenants of warranty, which gave to them a portion of the fee by way of estoppel. Although Engletje may have been married at that time, so as to protect her interest from being barred during the coverture, she died as early as 1834, and the lands were held adversely more than ten years after the descent to her hens. And the statute requires the heirs of the person as to whom a disability has existed, to bring their suit within ten years after the death of such person. (1 R. L. of 1813, p. 185, § 3.) It is true, the complainant, and perhaps the other daughter of Engletje, may have been femes covert at the death of their
The master appears to have proceeded upon the presumption that the surviving children of Garret Schermerhorn, Were heirs to those who died without issue in the lifetime of their father. The devise of the remainder in this case, however, is not to such of the testator’s grandchildren as shall survive their parents; but one-sixth of the estate in remainder is given to all the children of each child of the testator as a class. Bach grandchild, therefore, the moment it came into existence, took a vested interest in the remainder in fee; subject to open and let in after-born children. And such of them as died leaving issue, transmitted that interest by descent to his or her issue, even in the lifetime of the tenant for Hfe, as a vested remainder in fee. The parent from whose side the estate came, however, was the heir at law .of such of the grandchildren of the testator as had died without issue in the lifetime of such parent. In relation to five of the children of the testator, it does not appear that they had any children who died without issue in the lifetime of their parents. The master has therefore properly considered those who survived their parents, or who died leaving issue, as entitled to the whole estate. But in relation to Garret, who is still living, and who is probably so far advanced in life that he can have no other children, it distinctly appears that he had two children who arrived to full age, and afterwards died without issue. And as they did not convey their interest in the one-sixth of the remainder in fee to any one, during their lives, it descended to their father, as their heir at law, under our statute of descents. Garret Schermerhorn, therefore, upon the death of those two children, became seised of two-ninths of one-sixth of the remainder in fee in the whole premises, as the heir at law of those two children. And as he had conveyed lot number four which was allotted to him, and also lot number five, allotted-to his sister Engletje, with warranty, his interest in fee in two-, ninths .of one sixth of those two lots in Charlton passed, by es
As the rights of these several parties appear upon the face of the master’s report, it is not necessary to send that report back to the master to correct the erroneous estimate which he has made of their several interests in the premises, but that part of the report may be corrected in the decree.
The counsel for Gould insists that Garret Schermerhorn’s two-ninths of one-sixth of the reversion, in the four Charlton lots which were allotted to his brothers in the parol partition, belong to those who have derived title to those lots under the conveyances in fee from those brothers. This would be so if
The counsel for Gould also claims that the grantees of the Charlton lots, under the conveyances from the testator’s children, are entitled to the interest of the children of Engletje in the Charlton lands, upon the ground that their claims are barred by the statute of limitations; they not having been made within ten years after the death of their mother. He has, however, entirely mistaken the law on the subject; for the limitation, as to them, is a limitation of twenty years, and not of ten. The ten years’ limitation applies where the person entitled to sue for the recovery of lands is under a disability when the right accrues, and dies before such disability terminates, and thus casts the same estate, by devise or descent, upon heirs or devisees; in which case the heirs or devisees must bring their suit within ten years after the right of action accrued to them. But in this case, the children and descendants of Engletje do not claim title to the premises in question as the heirs at law of their mother. They are claiming a separate and distinct estate from hers, as the devisees of her father. And as a right in possession, to the estate in remainder, did not accrue to them until the death of their mother, in 1834, each of them had a right to bring his or her suit within twenty years from that time.
The interests of the several parties do not appear to be the same in either of the seven parcels of the Charlton lands described in exhibit B. annexed to the master’s report. And the interests of the parties in the two lots in Glen’s patent are also different from those in either of the seven parcels described in that exhibit. The decree must therefore describe the interest of each party in these several eight parcels of land, the two lots in Glen’s patent being considered as one parcel, and stating the general and specific liens or incumbrances on the interest of any of the parties in all or any of such parcels. Each of the eight parcels must then be sold separately; subject to such taxes and assessments as may have been imposed thereon—each lot in Glen’s patent being sold by itself. The costs of all parties entitled to costs, including the master’s fees and expenses of the sale, must then
The shares "of the proceeds belonging to the infant defendants áre nót to be paid to their guardians ad litem, as provided for in the draft of the decree presented; but they must be brought into court by the master, and paid to the clerk of the cóúrt Of appeals, to be invested for their benefit.
The equitable lien of James N. Schermerhorn, for the purchase money, is not upon the whole of the share of which H. Carpenter diéd seised, but only upon the half of that share which belonged to Jámes N. at the time-of the execution of the cónvéyáñce from him and" his sister for both of their shares. The amount due him for such purchase money must, therefore, be paid him out of the net proceeds of the half of the share óf ' the premises of which H. Cárpenter died seised, after deducting the costs and expenses properly chargeable thereon. And -the rights of the parties must be "declared, and provided for "accordingly,"in the decree. The dower of the complainant, in thenet proceeds of the half of the share of which her husband died seised must be computed only upon the balance of such proceeds after deducting the amount of such equitáble lien. For her dower interest, as well" as the interests of her children m that part of the premises which carné to H. Carpenter from James N. Schermerhorn, is subject to the éqúitáble lien of the latter for his unpaid purchase money
The defendant Garret Schermerhorn, by virtue of his covenants in the deed to Melville Brown, is liable to the several persons who have derived title under Brown, for the loss of such portions of their several lots as by this partition suit are ascertained to belong to others, as well as for their shares of the costs to which they have been subjected by this suit. And the children of Bartholomew and Rykert Schermerhorn, as. the heirs at law of their respective parents, having taken an interest by descent in the two lots in Glen’s patent, in addition to their interests therein under the will of their grandfather, they are, as such h.eirs at law, liable upon the covenants of warranty in the deeds of'their respective parents, and of their uncle John, to the extent of the interests which have come to them by descent. Even the children of Jeremiah and of Engletje, although the former gave no covenant of warranty, and the latter, béing a feme covert, was not bound by her covenant, are still liable, to a. certain extent, under the covenant of warranty of their uncle John. For they have taken by descent from their parents, interests in the two lots in Glen’s patent, which interests cune to their-