Mark H. Eisner, Appellant, v. Mary E. Curiel, Respondent, Impleaded with Others

Mark H. Eisner, Appellant, v. Mary E. Curiel, Respondent, Impleaded with Others. Partition — action by a life tenant — persons entitled to share in the proceeds of a sale wider a poiow given to etecutors are not necessary parties—equitable conversion, deferred. The complaint,, in an action for the partition of certain premises, alleged that they were formerly owned by Eliza Eisner, by whose will they were devised to the plaintiff and to Mary E. Curiel during, their joint lives and during the lifetime of the survivor, and upon the death-of the survivor the premises were ordered to be sold and one-eighth part to be given to each of six children of the testatrix other than the plaintiff and the defendant Mary E. Curiel, one-eighth part to the lawful issue of the plaintiff, and one-eighth part to the lawful issue of the defendant Mary E. Curiel; and in case of the death of any of the said children before the time specified,'their issue was to take collectively the share of the parent. " Louis A. Eisner, one of the six children, died before the testatrix and left two sons. The plaintiff made these two sons and the five surviving children parties defendant, but did not make defendants the children of the five surviving children of the testatrix nor the children of Mary E. Curiel. The answer of Mary E. Curiel, among other things,, alleged a defect of parties defendant. . Meld, that, assuming that an action was maintainable to partition the life estates only,’ and that the action brought was of that nature, there was no defect of parties'; xThat, if the action should be regarded as one for a partition .and sale generally, there was no defect of parties because there was no devise of the fee after the termination of the life estates, and it was, therefore, vested in the living children of Eliza Eisner and in the children of Louis A. Eisner, deceased, subject to the-life estates and to the execution of the power of sale given to the executors of Eliza Eisner; That this power of sale was an imperative general power in trust, effecting an equitable conversion of the estate upon the termination of the second and last life estate, which w’ould survive the executors and vest in the Supreme ' Court; That as the contingent interest of the grandchildren of Eliza Eisner existed not in.the real estate, but only in the personalty which would result from its conversion, they were not necessary nor proper parties to the action; That it was immaterial that the conversion was deferred until the termination of the life estates. Appeal by the plaintiff, Mark H. Eisner, from so much of an interlocutory judgment of the. Supreme Court in favor of the defendant, Mary E. Guriel, entered in the office of the clerk. of the county of New York on the 14th day of January, 1896, upon the decision of the court rendered after a trial at the New York Special Term, as overrules the plaintiff’s demurrer to the second defense contained in the answer of the defendant, Mary E. Guriel. The action was brought for the partition of the premises No. 322 East Fourteenth street, in the city of New York. The complaint alleges that the premises were formerly owned by Eliza Eisner, the mother of the plaintiff and of the defendant, Mary E. Guriel; that by her last will and testament they were devised to the plaintiff and the said defendant during their joint lives and the lifetime of the survivor ; that upon the death of the survivor the premises were directed to be sold and the proceeds paid over, one-eiglith part to each of six named children of the testatrix other than the plaintiff and the defendant, Mary E. Guriel, one-eighth part to the lawful issue of the plaintiff, and one-eighth part to the lawful issue of the defendant, Mary E. Guriel; and that in case of the death of any of said children before the time specified, their issue were to take collectively the share of the parent. Louis A. Eisner, one of "the six children above mentioned, predeceased the testatrix, leaving two sons. These two grandchildren and the five surviving children were made parties defendant; but children of the said five surviving sons and daughters of the testatrix and also of the defendant, Mary E. Guriel, were not made parties. The second defense in the answer of the defendant, Mary E. Guriel, alleges a defect of parties on account of this failure. Other facts are stated in the opinion. George W. Oarr, for the appellant. Wright Holeomb and Thomas F. Byrne, for the respondent. [MAJORITY — Barrett, J.:] Barrett, J.: If this is to be treated as an action solely for the partition of the life estates,_ the plaintiff has undoubtedly brought in all the parties-required by the statute. Upon a careful consideration of the complaint, we think his action should be thus treated. The averments-; and the prayer are confined to these life estates. There is no aliegation upon which partition and sale generally can be decreed. The question whether an action will lie for the partition of the life ■ estates apart from an action for the partition and sale of. the fee, is not before us upon the demurrer to the defendant’s plea. It cannot,. therefore, be considered. Viewing the action as the appellant does, namely, as an action strictly for the partition of the life estates, and without intimating that he can sustain such an action, we think the demurrer to the plea was well taken. There is certainly no defect i of parties with regard to .such an action. If, however, the action should be treated more broadly, as the' respondent insists that it may be treated, the result is the same. There was no devise of the fee after the termination of the life estates. Consequently the fee is now vested in the living children of Eliza Eisner and in the children of the deceased son. It is so vested subject to the life estates, and subject to the execution of the power of' sale given to Mrs. Eisner’s executors, This power is a general power in trust, and is imperative.' It effects an equitable conversion of the estate immediately upon the termination of the second life estate. (Delafield v. Barlow, 107 N. Y. 535.) This power will not die with the executors. It will survive and vest in the Supreme Court, which has full power to direct its execution by some person appointed for that purpose. (Delaney v. McCormack, 88 N. Y. 174.) It follows that the children of Mrs. Eisner’s living ■children were not necessary parties in any aspect of the case. Their ■contingent interest is not in the realty, but in the personalty resulting from the equitable conversion. It is this personalty and this alone which is bequeathed by the imperative direction to sell the realty and divide the proceeds. This conclusion is not affected by the fact that the conversion is deferred until the termination of the life estates. Even the fee vested in the parents is nominal. Under no circumstances can Mrs. Eisner’s heirs take any substantial interest in the realty. Even if they should collect the rents and profits intermediate the termination of the life estates and the sale under the power, they would be compelled to account therefor to the executor. (Lent v. Howard, 89 N. Y. 169.) In equity these intermediate rents go with,, and are deemed part of the converted : fund. It is quite clear, therefore, that the children of Mrs. Eisner’s' living children were neither necessary nor proper parties to this action, and that the demurrer to the plea of non-joinder should have-been sustained. The judgment should be reversed, and the demurrer sustained,, with costs in this court and the court below, with leave to the-defendants to amend their answer upon payment of such costs in. this court and in the court below. Van Brunt, B. J., Rumsey, Williams and Patterson, JJ.,. concurred. Judgment reversed and demurrer sustained, with costs in this-court and the court below, with leave to defendants to amend their answer on payment of such costs in this court and in the court below..