Majority
p. 270Elwood B. Mingay, App’lt, v. Mary E. Lackey et al., Resp’ts. (Supreme Court, General Term, Second Department, Filed December 1, 1893.)
Headnote
Partition—Judgment.Where an interlocutory judgment of partition-provides for payment of a gross sum to the tenant by the curtesy, the judgment is properly modified by striking out such provision, if such tenant dies before the sale is made.
Appeal from an interlocutory judgment in partition.
Sidney H. Stuart, for app’lt; Feiiner & Beck (Edwin S. Babcock), for resp’t.
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.