p. 616Julia L. Dwight, Respondent, v. Edgar V. Lawrence, Individually and as Sole Heir at Law of Samuel R. Lawrence, Deceased, Appellant, Impleaded with Katherine L. Neumann and Others, Defendants.Headnote
Partitionwhen direction for sale of premises proper although there . are contingent interests. ,Although there are contingent interests in real estate devised by will dependent upon whether children'entitled to'share may come into being, an order of sale in an action for partition is proper, when all the persons who, have a present interest in the subject-matter of the sale are before the court, including the executor óf the will who will receive the portions of such aftérborn children. in trust to be disposed of under the terms of the- will. 1
Appeal by the defendant, Edgar Y. Lawrence, individually and as sole heir at law of Samuel it. Lawrence, deceased, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office off the clerk of the county of Hew York on the 18th day of April, 1905, upon the report of a referee, directing a' partition and sale of certain real' property. <
Charles L. Hoffman, for the appellant.
De Lagnel Berier, for the respondent.
W. H. Van Steenbergh, guardian ad litem of the infant defendant Katherine R. Neumann.
The judgment appealed from' must he- affirmed. It properly directs a sale of the property affected. It is perfectly obvious, under the proofs presented, that an actual partition could- not be
p. 617made so. as to do justice to all of the parties interested. Under the judgment appealed from the plaintiff is entitled to an undivided one-fourth interest; the appellant, individually and as sole heir at law of Samuel R. Lawrence (who has died since the appeal was taken), is entitled to an undivided one-half interest; and the remaining one-fourth interest is held -by Gaines Lawson, as executor and trustee under the last will and testament of Laura Lawson, deceased, in trust to pay the income therefrom, one-half to the defendant Katherine L. Neumann during her life and the other half to Lawrence M. Lawson during his life. The defendants Katherine L. Neumann, Lawrence M. Lawson and the infant defendant Katherine R. Neumann have an interest, either vested or contingent, in this remainder, but it is immaterial whether or not such interest be correctly stated in the judgment, inasmuch as none of them have appealed therefrom and this part of the judgment in no way affects or concerns the plaintiff. It is sufficient to say that a purchaser upon the sale will obtain good title inasmuch as there are now before the court all of the parties who-at the present time have any interest in the subject-matter of the sale. (Code Civ. Proc. §§ 1557, 1577.) The "fact that' there may hereafter be unborn children who might have an interest in the one-fourth interest or some part thereof now held by Gaines Lawson, as executor and trustee, could not affect the title because “ the person(s) first entitled to which or other virtual representative(s) whereof ” are parties to the action. (Code Civ. Proc. § 1557, subd. 3.) The only appellant is Edgar V. Lawrence.
The plaintiff, after deducting the costs and expenses of the sale, will be entitled to one-fourth of the proceeds, the appellant to one-half, and the defendant Gaines Lawson, as executor and trustee under the last will and testament of Laura Lawson, to the remaining one-fourth, the same to be held by him in trust and to be disposed of in accordance with the terms of such will
The judgment appealed from, therefore, should be affirmed, with costs to the respondent.
Present — O’Brien, P„ J., Ingraham, MoLahghlin, Laughlin and Houghton, JJ.
Judgment affirmed, with costs. Order filed.