Rockwell v. Decker

Headnote

Pa/riition — provision, in cm interlocutory decree for the protection of the interests of contingent remaindermen — an error in the judgment confirming the sale, as to the disposition of the proceeds thereof.\ will not affect the title of apm'chaser — a trust fund need not always he paid into court.

The interlooutory judgment in an action for partition adjudged that the executors and trustees of the testator were entitled to an undivided one-third of the property, in trust to apjfiy the income to the use of one of the testator’s daughters during her natural life, and that at her death the remainder was to go to her lawful issue, if any survived her, and in default of such issue it was to go to her sisters, or their issue. The final judgment ordered one-third of the proceeds of sale to be paid to the said executors and trustees.

A purchaser refused to complete his purchase, upon the grounds that the judgment did not properly protect the interests of the contingent remaindermen in the trust fund, and that it should have directed the payment of the fund into court:

jHeld, that there was no absolute rule requiring the trust fund in such a case to be paid into the office of the county clerk, or of the county treasurer.

That the validity of the title of a purchaser under a judgment in partition would not be affected by an error therein in the manner of protecting the contingent interests of remaindermen.

That the purchaser should be compelled to complete his purchase.

Appeal by a purchaser at a partition sale, from an order requiring him to complete his purchase.

The purchaser declined to complete his purchase unless the judgment was “ amended so as to provide for and protect the contingent interests of the unborn children of the defendant Annie P. Decker, by substituting the fund derived from the sale of the land affected

by such interests in place of tbe land, and preserving it to tbe extent necessary to satisfy such interests as they arise,” and until by the final decree in the action the proceeds of the sale were disposed of according to the provisions of article 2 of chapter lé of, the Code of Civil Procedure.

The interlocutory decree in this case ordered and adjudged that the rights, shares and interests of the parties in the property mentioned in the complaint are as follows: “ Almira Chase, Stephen P. Nash, Ashley C. Morrill and Augustus P. Rockwell, executors and trustees under the last will and testament of J ames Chase, deceased, an undivided one-third thereof in trust, to apply the income thereof to the use of the defendant Annie P. Decker, for and during her natural life, free from any control or interference of her husband, remainder at her death to her children, the defendants Annie C. Decker and Nellie B. Decker, and to her lawful issue, if she leave any surviving her; if not then to her sisters, the defendants Harriet R. Rockwell and Sophia P. Morrill, if they survive her, and to their lawful issue if they do not survive her, the children taking in such cases the share their mother would have taken if living.”

The final judgment confirmed the sale, directed the referee to execute the proper conveyances and to pay one-third of the proceeds of the sale to the said executors and trustees, who by the interlocutory decree had been declared entitled to the same.