Underhill v. Underhill — 4 N.Y. St. Rep. 858

Majority

p. 858

Benjamin F. Underhill et al. Individually and as Ex’rs, etc., Resp’t, v. Sarah A. Underhill et al., Impleaded with Caleb F. Underhill et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed December 14, 1886.)

Headnote

1. Partition of real estate—Practice—When land sold in parcels:

Whether land sold on a partition sale shall be in parcels or not is usually left to the referee to decide subject to the approval of the court.

2. Same—When ordered where executors have a power of sale.

Partition is properly ordered where the power of sale in the executors would need the aid of the court to fix the time when it could be exercised.

" Appeal by part of the defendants from a judgment entered at a special term held in Westchester county, fixing the interests of certain parties in certain lands, and ordering the partition of said lands by sale.

F. & S. H. Fitch, for resp’ts; Thomas Nelson, for app’lts.

This case shows that a farm of land in Westchester county near Tuckahoe, consisting of 128 acres of land, is owned by six persons as tenants in common.

The farm is subject to two legacies of $4,000 each before the owners of the fee take anything. The proof accords with the finding of the judge, that no actual partition can be made without injury to the parties. The only claim made is that the farm may sometime be needed for villa sites, for which at present there is no demand. The parties are not bound to await that period. It is now a farm with proper farm buildings for a farm as an entirety. It will not sell for more in all probability in small parcels than it will as an entirety. The question whether the sale shall be in parcels is one usually left to the referee, subject to the approval of the court, and this is an entirely different question from the question of sale or actual partition. The parties made two issues—one as to any sale, and the other as to actual partition instead of sale if partition were to be ordered. Partitition was properly ordered, because the power of sale in the executors of Caleb F. Underhill would probably need the aid of the court as to the time it would properly be exercised. A sale in this action will give a good title. Considering the nature and use of the property

p. 859

and all the surrounding circumstances, it was proper to direct a sale of the lauds as an entirety.

The judgment should, therefore, be affirmed, with costs. Pratt, J., concurs, Dykman, J., not sitting.