29 A.D. 513 | N.Y. App. Div. | 1898
The action is brought for the partition of certain property of which Andrew J. Garvey, deceased, died seized, the plaintiffs claiming, as heirs at law of said Andrew J. Garvey, that an apparent devise of such property made by the last will and testament of the said deceased is void.
The complaint alleges that said Andrew J. Garvey, late of the city and county of New York, deceased, was seized in fee absolute and in possession of certain lots, pieces or parcels of land situated in the city and county of New York, which are particularly described ; that the said Garvey died on or about the 5tli of April, 1897, intestate, leaving a last will and testament and a codicil thereto, which Are set forth in full in the complaint. By this will and codicil the testator, after giving certain specific legacies, gave, devised and bequeathed all the rest, residue and remainder of his estate to his
It seems to be clear that this will and codicil, taken together, created a valid trust under which the title of the testator’s property vested in the executor and trustee for the purpose of the trust. That trust was to continue during the life of the testator’s wife. Upon her death the trust ceases. The testator attempted to dispose of the rest of his property by giving £5,000 out of his estate to-such person or persons as his said wife should by her last will and testament appoint, and the remainder of his estate, real and personal, to the charitable institutions or corporations named in the will. The directions for the accumulation of income not needed to pay the sums directed to be paid from such income would be invalid under the statute, but the invalidity of that direction does not affect the trust. Such surplus income will, under the statute, belong to the persons presumptively entitled to the next eventual estate. (1 R. S. 726, § 40; Cochrane v. Schell, 140 N. Y. 516.) A valid
Bor are the plaintiffs entitled to maintain the action under section 1533 of the Code, for the reason that this is not an action brought under that section. That section provides that where two or more persons hold as joint tenants, or as tenants in common, a vested remainder or reversion, any one or more of them may maintain an action for the partition of the real property to which it attaches, according to their respective shares therein, subject to the interest of the person holding the particular estate therein. Here the action is for a partition and sale of the property itself, with a claim that the apparent devise contained in the will of the decedent is void. The action is not brought for a partition of the interests of those entitled to an estate in remainder, subject to the right and interest of the person holding the particular estate. Bo such relief is sought in this complaint; but the judgment demanded is that the property itself be partitioned so that the present right of possession and ownership), as well as the remainder or reversion, may be partitioned or sold. That it was the intention of the Legislature to confine an action brought under the section last mentioned to a division of the remainder or reversion among the owners therein, without affecting compulsorily the right of those in whom the particular estate vests, is clear from the subsequent piro vision of the section, where it is provided that no sale of the premises in such an action shall be made except by and with the consent in writing of the pierson or persons owning and holding such particular estate or estates, and also from the provision that if it should ap>pear at any stage of the action that partition or sale cannot be made without groat pn-ejudice to the owners, the coin
Nor do we think that the allegations of the complaint are sufficient to show that the devise of the remainder after the termination of the life of the testator’s widow is void. The complaint does not allege any facts upon which a conclusion could be sustained that this devise contained in this will is void. The complaint several times alleges the will to be void, but as that allegation is a mere conclusion of law it is not admitted by the demurrer. The only clause of the complaint from which it could be claimed that a fact is alleged, from which it might be presumed that the devise over is void, is the 4th clause. That clause alleges that .the will and codicil of the testator and the provisions thereof are illegal and void, for the reason that they are indefinite and uncertain, invalid and unauthorized by law, and unlawfully suspend the alienation of the property of which the said Andrew Jeffries Garvey died seized and possessed, but neither of the grounds here stated was insisted upon the argument before us, and the particular provisions of the will which are claimed to be illegal and void for these reasons are not pointed out to us upon this appeal. The clause then continued: “ And because in contravention to the law of this State which prohibits a person having a wife from devising or bequeathing more than one-half of his estate in trust or otherwise to benevolent, charitable, literary, scientific or missionary societies, associations or corporations.” Here is alleged the reason for the claim that the provisions of the will are illegal and void. It is not alleged as a fact that the testator did
In the case of Weston v. Stoddard (137 N. Y. 119) the court said: “ Where a devisee is in possession under a devise in a probated will, he has an exclusive title to the property, which is presumptively valid against the heir and all persons claiming through the testator, and without an enabling statute the heir could not maintain partition, because, upon the face of the record, he is not a co-tenant of the title at all. Before he can bring himself into such a relation with the occupant he must procure the judgment of the court declaring the devise void for some sufficient cause, after which he may insist upon partition between himself and the other heirs, and the purpose of the statute (Code, § 1537) was to enable him to secure this two-fold relief in one action.” Whether or not the testator has given more than one-half of his estate to corporations or associations, mentioned in the act of 1860, is a question of fact, which must be determined upon the facts alleged and proved in an action by the. heirs at law to recover possession of the estate which the testator devised 'to such corporations, but to which the prohibition of the act of 1860 applies. A mere allegation that the devise was void, or that the plaintiffs were entitled to the possession of the land, is an allegation of a conclusion, not a fact. The facts should have been alleged from which such a conclusion of law could have been drawn. (Sheridan v. Jackson, 72 N. Y. 170.) The question as to how it is to be ascertained whether or not a testator has devised or bequeathed more than one-half of his estate in violation of the act of 1860 has been settled by the Court of Appeals in the case of Hollis v. Drew Theological Seminary (95 N. Y. 177), where the court says: “ The sums bequeathed to these corporations are first given for life to other persons, and they are to be paid to these corporations after the death of the other persons named. It is contended on behalf of the plaintiff, that for the purpose of ascertaining-whether the bequests exceed one-half of the estate, they are to be taken just as if they vested, and were payable to these corporations without any delay after the death of the testator. * * * How
I think, therefore, that the complaint fails to show a cause of action, and that the judgment should be reversed and the demurrer sustained, with costs, with leave to the plaintiffs to amend the complaint upon payment of costs.
Patterson and McLaughlin, JJ., concurred; Van Brunt, P. J., concurred, except as to second ground discussed, as to which he expressed no opinion, deeming that discussion unnecessary; O’Brien, J., concurred in result on the ground that the action cannot be maintained because there is a trust which continues during the life of the widow.
Judgment reversed and demurrer sustained, with costs, with leave to plaintiffs to amend on payment of costs.