124 N.Y.S. 380 | N.Y. App. Div. | 1910
This action is brought to partition lands of which Charlotte Miller died seized in 1901. A contest over the probate of her will is still pending. Margaret L. Schultz, the sole devisee named in the unprobated will, purchased the interests of five of the seven heirs at law, and thereafter conveyed to one Duff five equal undivided sevenths of the property, which the said Duff conveyed to the plaintiff George C. Smith. There is no suggestion that Charlotte Miller left any other will than the one in questionand it is not disputed that when the action was commenced the plaintiff was the owner of an undivided five-sevenths, as grantee of both the heirs at law, and the sole devisee, subject to the inchoate right of dower of his wife. The property is in the actual possession of a temporary administrator. But section 1532 of the Code of Civil Procedure does not require a strict pedis possessio. It requires a right to . possession as distinguished from the cases in succeeding sections. ' (Weston v. Stoddard, 137 N. Y. 119.) The plaintiff was constructively in possession. The possession of the temporary administrator must be deemed that of the rightful owners. Plainly, therefore, the plaintiff was in a position to maintain partition. He could not allege in his complaint who owned the other undivided two-sevenths because that still remained undetermined. But section 1542 of the Code of Civil Procedure seems to provide for just such a ease, and the plaintiff alleged that the interests of the other, parties were uncertain and unknown to him and could not be determined until it was finally adjudicated whether Charlotte Miller died intestate. The other undivided two-sevenths belongs either to her devisee, Margaret L. Schultz, or .to the-two heirs at law who have not conveyed to the said Margaret Schultz. There is ho reason why the plaintiff should have his interest tied up until the final determination of the will contest, and the Code expressly provides for such a case. (See Code Civ. Proc. §1547.)
The judgment should be reversed and an interlocutory judgment of partition and sale directed, with costs to appellants to be paid out of the proceeds of sale.'
Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.
Judgment reversed and interlocutory judgment of partition and sale directed, with costs to appellants to be paidfOut of the proceeds of sale. Settle order on notice.