Eisner v. Curiel

37 N.Y.S. 1119 | N.Y. App. Div. | 1896

Barrett, J.:

If this is to be treated as an action solely for the partition of the life estates,_ the plaintiff has undoubtedly brought in all the parties-required by the statute. Upon a careful consideration of the complaint, we think his action should be thus treated. The averments-; and the prayer are confined to these life estates. There is no aliegation upon which partition and sale generally can be decreed. The question whether an action will lie for the partition of the life ■ estates apart from an action for the partition and sale of. the fee, is not before us upon the demurrer to the defendant’s plea. It cannot,. therefore, be considered. Viewing the action as the appellant does, namely, as an action strictly for the partition of the life estates, and without intimating that he can sustain such an action, we think the demurrer to the plea was well taken. There is certainly no defect i of parties with regard to .such an action.

If, however, the action should be treated more broadly, as the' respondent insists that it may be treated, the result is the same. There was no devise of the fee after the termination of the life estates. Consequently the fee is now vested in the living children of Eliza Eisner and in the children of the deceased son. It is so vested subject to the life estates, and subject to the execution of the power of' sale given to Mrs. Eisner’s executors, This power is a general power in trust, and is imperative.' It effects an equitable conversion of the estate immediately upon the termination of the second life estate. (Delafield v. Barlow, 107 N. Y. 535.) This power will not die with the executors. It will survive and vest in the Supreme Court, which has full power to direct its execution by some person appointed for that purpose. (Delaney v. McCormack, 88 N. Y. 174.) It follows that the children of Mrs. Eisner’s living ■children were not necessary parties in any aspect of the case. Their ■contingent interest is not in the realty, but in the personalty resulting from the equitable conversion. It is this personalty and this alone which is bequeathed by the imperative direction to sell the realty and divide the proceeds. This conclusion is not affected by the fact that the conversion is deferred until the termination of the life estates. Even the fee vested in the parents is nominal. Under no circumstances can Mrs. Eisner’s heirs take any substantial interest in the realty. Even if they should collect the rents and profits intermediate the termination of the life estates and the sale under the power, they would be compelled to account therefor to the executor. (Lent v. Howard, 89 N. Y. 169.) In equity these intermediate rents go with,, and are deemed part of the converted : fund.

It is quite clear, therefore, that the children of Mrs. Eisner’s' living children were neither necessary nor proper parties to this action, and that the demurrer to the plea of non-joinder should have-been sustained.

The judgment should be reversed, and the demurrer sustained,, with costs in this court and the court below, with leave to the-defendants to amend their answer upon payment of such costs in. this court and in the court below.

Van Brunt, B. J., Rumsey, Williams and Patterson, JJ.,. concurred.

Judgment reversed and demurrer sustained, with costs in this-court and the court below, with leave to defendants to amend their answer on payment of such costs in this court and in the court below..