45 N.Y.S. 1010 | N.Y. Sup. Ct. | 1897
The plaintiff seeks a partition and sale of life interests in the house 322 East Fourteenth, street, New York city, and certain personalty. The controversy is between the plaintiff and the defendant Mary E. Curiel, who is his sister. Their mother, Eliza Eisner, died June 3, 1885, leaving a will by which she devised to the brother and sister the dwelling-house during their joint lives and the lifetime of the survivor, and upon their deaths directed her executors to sell the same and divide the proceeds among their issue and her remaining children, six in number, one of whom died before her decease leaving two children. She bequeathed to the brother and sister also her household furniture, wearing apparel, pictures, jewelry, etc., during their joint lives and the lifetime of the survivor, and after their death to her remaining children and their issue.
The brother and sister occupied the house and personalty for seven years after the mother’s death, in substantial concord, though
It is manifest, therefore, that .both parties cannot be-continued in the full enjoyment of their rights in any satisfactory way without the intervention of the court, to which the plaintiff has appealed. There is no difficulty in the court’s entertaining an equitable action for the partition of a joint life estate, or even for years, in realty, or even of a vested remainder or reversion. Code Civ. Pro., §§ 1532, 1533; Jenkins v. Fahey, 73 N. Y. 355.
There is also- no difficulty in partitioning personalty. Shehan V. Mahar, 17 Hun, 129; Andrews v. Betts, 8 id. 322; Prentice v. Janssen, 14 id. 548.
By the decision of the Appellate Division upon a demurrer in •this case there is no defect of parties,, although the grandchildren of the testatrix, representing a deceased son, are not parties 'to the litigation. Eisner v. Curiel 2 App. Div. 522.
It is conceded by the parties litigating here that no judgment' can be rendered which will disturb the rights of the others interested in the estate of the testatrix and that this judgment affects only the life tenure of the brother and sister who here litigate.
. The court has undoubted power, in case of great prejudice to the interests of the óymers, to direct a sale of the title of the parties brought within reach of the power of the court, and it is plain that such a judgment should be awarded here if that interest were a fee simple,absolute so that the full value of the property could be ob- ' tained upon a sale. But, in my judgment, greater prejudice would arise to the interests of the parties by a direction for a sale of joint
Compensation may be awarded by the commissioners, if the circumstances require it, for inequality of future use, to be paid by the party enjoying the larger advantage, and they may also report whether a sale of any of the property is necessary to perfect such equality, which sale the court may hereafter order. Post v. Post, 65 Barb. 192.
I think they may also report, without the expense of a reference for that purpose, the sums- paid by the parties respectively heretofore for water rates, taxes or permanent repairs. They may assign a portion of the premises to one, subject to a servitude or easement in favor of the other. Smith v. Smith, 10 Paige, 470.
Judgment is, therefore, directed awarding an actual partition of the property, real and personal; for the lives of the plaintiff and the defendant Mary E. Curiel, and the survivor, with powers' given to’ the commissioners as herein indicated. The plaintiff should have costs, but necessarily they cannot be adjudged until the expense of the commission has been ascertained. The costs can then be inserted in the final judgment.
Ordered accordingly.