59 N.Y. 426 | NY | 1875
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *428
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *429 This is an action for the partition of lands in the city of Rochester of which Charles Mulford died seized. The plaintiff, a daughter of the deceased owner, claims to be entitled as an heir at law. The defendants are Mrs. Mulford the widow, Mrs. Wright another daughter of the deceased owner, and the executor and executrix named in his will, and certain tenants in possession of parts of the premises sought to be partitioned. The title of the plaintiff is controverted by the defendants, who set up the will of the former owner and insist that the premises and the whole estate therein are effectually devised in and by such will to persons other than the plaintiff, and that she has no estate therein as heir at law, and no estate or interest in the premises except a contingent beneficial interest in the rents and profits for her life, after the death of her mother, Mrs. Mulford. The plaintiff claims in hostility to the will, and alleges the invalidity of the disposition attempted to be made of his property by the testator. Although in form an action of partition it is really a suit to determine and settle the title to the realty mentioned in the pleadings. This form of action is at least a doubtful procedure for the trial of adverse or hostile claims to real property. The title of the parties should be first established by the proper action before proceedings taken for a partition. There should be a tenancy in common, and an actual or constructive possession by the plaintiffs. (2 R.S., 317;Brownell v. Brownell, 19 Wend., 367; O'Dougherty v.Aldrich, 5 Den., 385; Striker v. Mott, 2 Paige, 387;Bradstreet v. Schuyler, 3 Barb. Ch., 608.) An action for partition cannot be made a *431 substitute for an action of ejectment, or other action to establish the legal title of adverse claimants to real property. But as the parties have proceeded thus far in the litigation without objection to the form of the remedy, the merits of the controversy will be considered so far as may be necessary to determine whether the devise to, and the provision for the wife of the testator, under the third and fourth paragraphs of the will, are valid.
If the provision made for Mrs. Mulford is inseparably connected with and dependent upon the other dispositions of the will especially the devise to the daughters and their children as a part of a general scheme for the disposal of the property of the testator, and the whole estate therein, the case is directly within Knox v. Jones (
The judgment must be reversed, and as the right of the plaintiff rests entirely upon the construction of the will of Mr. Mulford, and a new trial cannot change the rights of the parties, the complaint must be dismissed with costs.
All concur, CHURCH, Ch. J., not sitting.
Judgment reversed, and judgment accordingly.