Chamberlin v. Chamberlin

Headnote

Chamberlin v. Chamberlin, 172 App. Div. 968 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 20, 1915, modifying and affirming as modified a judgment in favor of defendants entered upon a dismissal of the complaint by the court at Special Term in an action for partition. Julia F. Chamberlin died February 19, 1914, leaving a last will and testament by which she directed the division of all her property into three equal parts and gave one of these parts to her son George absolutely, the second part to her son Edwin, and the third part to her executor in trust for her son

Albert during his life and after his death to his issue or widow absolutely. The property over which this controversy arose was real estate belonging to the testatrix and situated in Westchester county. Her son.Edwin and his wife commenced this action for a partition of the real estate. Their complaint was dismissed at Special Term on the ground that there was an imperative power of sale in the will and that the real estate became, by virtue of such power of sale, personal property at the time of the death of the testatrix. The principal question on appeal was as to whether equitable conversion per se constituted a bar to partition.