137 A.D. 15 | N.Y. App. Div. | 1910
The testator gave to his executors all his property, including real estate, to be held in trust by them, invested and reinvested, and the rents, income and profits thereof collected by his said executors and paid over by them to his wife, Rebecca Mitchell, during her life, and he directed that after her death his executors sell all his real estate and personal property remaining in their hands and divide the proceeds thereof equally among his three sons, William E. Hit
Plaintiff is not helped by the authorities cited by her. In Hetzel v. Barber (69 N. Y. 1) all. taking interest in the land subject to the power elected to take the land and manifested their election by alienation.. In the present case-William has so manifested his election by conveying to the plaintiff, but the other two do not join. In Prentice v. Janssen (79 N. Y. 478), on which the plaintiff also relies, it was stated in the opinion that the “owner of the'remaiuing one-fourth had assented to the reconversion by exercising acts of ownership,” etc. Therefore, such person was precluded from objecting to the partition. In Henderson v. Henderson (113 N. Y. 1,13) it was stated that one or more persons taking interest could not maintain compulsory partition proceedings pending the existence of the right in the executor to exercise his powers of partition and
Therefore, the interlocutory judgment overruling the demurrer should be reversed, with costs.
Hirschberg, P. J., Woodward, Jenks and Burr, JJ., concurred.
Interlocutory judgment reversed, with costs, and demurrer sustained, with costs.