Majority
p. 161(74 Hun, 89.) MINGAY v. LACKEY. (Supreme Court, General Term, Second Department. December 1, 1893. Argued before BARNARD, P. J., and PRATT, J.
Headnote
Partition—Interlocutory Judgment—Modification.Where an interlocutory judgment oí partition directs a sale of the> premises, and provides for payment of a gross sum to the tenant by the curtesy, .who dies before the sale is made, the order is properly modified by striking out such provision.
Appeal from special term, Westchester county.
Action by Elwood B. Mingay against Mary E. Lackey, Idly Mingay, and others for partition. An interlocutory judgment was entered directing a sale of the premises sought to be partitioned, and providing that the value of the interest of James Mingay as tenant by the curtesy should be paid to E. B. Mingay, to whom said James B. Mingay had transferred his interest. Before the sale was made, James B. Mingay died, and on motion the provision of such payment was stricken out. Plaintiff appeals.
Affirmed.
Sidney H. Stuart, for appellant.
Feitner & Beck, (Edwin S. Babcock, of counsel,) for respondent.
The interlocutory judgment did not divest the estate by curtesy. That existed and was fully enjoyed till the death of the life tenant. The object of paying a gross sum to the life tenant out of the proceeds of the sale is to indemnify the life tenant for the estate of which he is to be deprived by the partition sale and the conveyance under it. As the life tenant died before the sale took place, the life estate thus extinguished can no longer be the subject of sale, and the provisions of the interlocutory judgment relating thereto were properly expunged by amending the judgment. Mulford v. Hiers, 13 N. J. Eq. 13 , is a case of dower, but the principle is applicable here. Order appealed from affirmed, with costs.