2 Paige Ch. 387 | New York Court of Chancery | 1831
I think the' vice chancellor decided correctly in refusing partition in this case. The executors, under the will, and such person as should be the personal representative of the survivor, if both executors died during the continuance of the trust, took, by implication of law, an estate in trust during the lives of the three grand children. And the ■ complainants and Mrs. Mott are each entitled to a contingent or conditional fee in'one third of the remainder of the estate, provided they have issue living at their deaths with cross remainders if either dies without issue. The complainants are not. entitled tq a partition of the present interest in the
Besides, I am not aware of any case in which a party who had a mere reversionary interest in an estate has been permitted to apply for a partition, without the concurrence of the owners of the present interest. A reversioner is sometimes a necessary party to a bill in partition; but it is where the owner of a present interest in an undivided part of the premises has also an interest in an undivided part of the re-' version. In such cases .it is proper for such owner of the present interest to make the owner of the residue of the reversion, as well as those who are interested in the residue of the particular estate, parties to the suit; so that an entire share may be set off to the complainant in severalty. It is also necessary to make a reversioner a party to a bill filed by an owner of a particular estate, when some of the other parties interested in the residue of the premises are the owners of a present interest thereof in fee. But I can see. no possible benefit which one tenant in common of a reversion, even if he has an absolute estate therein, can derive from a partition of his future interest in the property. He ought not therefore to be permitted to file a bill merely for the sake of making costs, or to compel a sale of the property of his co-tenant. The sale, where it is permitted, is merely incidental to the partition; and is resorted to for the purpose of preventing a sacrifice of the property by a division. As the reversioner can derive no benefit from an actual partition of the premises during the continuance of the particular estate, he ought not to be permitted to commence a suit for the mere purpose of compelling a sale of the property during that period ; or to subject other parties to costs prematurely and unnecessarily.
The decree of the vice chancellor must therefore be affirmed, with costs.; and the cause must be remitted to him, that such further proceedings may be had therein as may be necessary.
