Underwood v. Curtis , 1 Silv. Sup. 280 ( 1889 )

Hardin, P. J.

Bespondents’ learned counsel is correct in claiming that the will and codicil are to be construed together, as though the language thereof was contained in one instrument. 3 Rev. St. (7th Ed.) p. 2288, § 71; Ward v. Ward, 105 N. Y. 68, 11 N. E. Rep. 373; Brown v. Clark, 77 N. Y 369. We do not agree with the learned counsel for the respondents, however, in his contention that “said will and codicil, and said codicil, and each and all ■of them, are illegal, null, and void, for the reason that the absolute power of alienation or ownership of the property is thereby suspended for a longer period than during the continuance of not more than two lives in being at the creation of the estate.” Of course, the provision of the statute in respect to the suspension of power of alienation for not more than two lives in being must be borne in mind in giving construction to the will and codicil before us. 3 Rev. St. (7th Ed.) p. 2176, § 15; Patterson v. Ellis, 11 Wend. 259; Knox v. Jones, 47 N. Y. 389; Schettler v. Smith, 41 N. Y. 328. We are of the opinion that an estate for the life of Fanny Curtis, the widow, vested in the whole estate upon the death of the testator for the benefit of Fanny Curtis, Helen C. Waters, and Harriet S. Curtis. We are also of the further opinion that, on the termination of the life-estate first provided for, Mary A. Underwood took a contingent life-estate in one-quarter of the real estate, subject, however, to the contingency of an omission to sell within 10 years, according to the contingencies mentioned in the will and codicil. We are also of the further opinion that one-quarter of the real estate passed to Theresa Brown under like contingencies, and that the other two-fourths of the remainder of the estate vested in the two daughters Helen C. and Harriet S. Curtis. Ackerman v. Gorton, 67 N. Y. 66. While there was a discretion vested in the executrices to make a sale, there was no creation of a trust term for any limited or stated period of time, and hence there was no suspension of the power of alienation. The mere creation of the trust did not suspend the power of alienation. There was no period when a sale would be in contravention of the trust, although it may be conceded there was a discretion given to the trustees as to the time in which a sale might be made. Robert v. Corning, 89 N. Y. 225; Henderson v. Henderson, 20 N. E. Rep. 814. These views lead us to the conclusion that the judgment, so far it declares portions of the will “illegal and void,” is erroneous, and ought to be reversed.

It is suggested, however, by the learned counsel for the respondent that an action for partition may be maintained by virtue of section 1533 of the Code of Civil Procedure. That section provides, viz.: “ 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 a 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. But in such an action the property cannot be sold; and, if it appears in any stage thereof that partition cannot be made without great prejudice to the owners, the complaint must be dismissed.” Under this section it must be obvious that the complaint before us, so far as it asks for a sale of the property, cannot be upheld under the section just quoted. It may be questionable whether, upon the facts that are stated in the complaint, it appears that an actual partition “cannot be made without great prejudice to the owners.” We do not regard it important to pass upon that view of the case upon the facts now before us. It may be suggested there is also doubt as to the propriety of the plaintiffs maintaining a partition against Bertie Curtis. Sullivan v. Sullivan, 66 N. Y. 37. However, we do not consider it important to pass upon the question finally in the determination of the appeal before us. It is quite apparent that the pleader did not prepare the complaint in this case with a view of bringing the rights of the parties before the court that the property might be partitioned in virtue of the enabling provisions found in section 1533 of the Code of Civil Procedure. It may be further observed that the complaint does not contain an artistic statement of facts sufficient to constitute a cause of action for the purpose of maintaining an actual partition against the defendants as executrices in pursuance of the provisions of section 1533 enabling two or more persons who hold as tenants in common “a vested remainder or reversion” to maintain an action for a partition of real property. If the plaintiffs are to be allowed to maintain an action for actual partition in virtue of the section just alluded to, before doing so they should amend their complaint and so frame it as to bring their case fairly within the permissive provisions of the section of the Code. It seems to be conceded by the respondent, and to have been held at the special term, that this will and codicil effected a conversion of the real estate into personalty, so that the statute in relation to accumulation of personal property was the only one applicable to the questions involved in the case. However, we do not think it opportune to pass conclusively upon that question; nor whether that view of the case stands in the way of an actual partition of the real property. See Davies v. Davies, 15 Wkly. Dig. 118. Morse v. Morse, 85 N. Y. 53. Nor do we deem it important to pass upon the question as to whether the plaintiffs can present a proper state of facts entitling them to a construction of the will and codicil. Weed v. Weed, 94 N. Y. 247. Because of the erroneous provisions found in the judgm'ent brought before us by the appeal we think it should be reversed, with costs, and the demurrer sustained, with costs, with leave, however, to the plaintiffs to amend their complaint upon payment of costs of the demurrer and the costs of this appeal within 20 days. Judgment reversed, with costs, and the demurrer sustained, with costs, with leave to the plaintiffs to amend their complaint within 20 days upon payment of costs of the demurrer and of this appeal. All concur.