
    Mary Emma Wood, Plaintiff, v. Robert T. Powell and Robert S. Powell, Appellants, Impleaded with Others. William A. Onderdonk, as Receiver, etc., of Robert T. Powell, Respondent.
    
      .Partition — the receiver of a life tenant may file a consent to accept a gross sum in lieu of the income of the judgment debtor's share — laches of the receiver, in so doing, when excused — Oode of Oivil Procedure, § 1569.
    ‘The interlocutory judgment in an action for partition provided that unless one . Powell, a life tenant, should file his consent to accept a sum in gross on or before the filing of the report of sale, one-third of the net proceeds of the sale should be paid into court to be invested, and that in case a consent was filed the value of the life estate should be ascertained and should' be paid into court as á separate fund, subject to its further order. Powell, the life tenant, ■did not file a consent, but a receiver of his property, appointed in proceedings supplementary to an execution issued under a judgment recovered against him, applied to the court to be admitted as a party to the action, and to be" allowed to file his consent, as receiver, and as the person upon whom the life estate had descended, to receive a gross sum iix lieu of the income of the one-third of the net proceeds- of the sale set off for the share of the judgment debtor.
    
      .Held, 'that, by virtue of his appointment, the receiver became vested with all the right, title and interest of the life tenant, and became a tenant pur autre vie; ‘That the receiver had a right to file the consent in question, and that his acts were not in derogation of the rights of the remainderman, who took the estate subject to this contingency of an election by the life tenant between a. gross sum and an income for life;
    That, although the election had not been made when the report of sale in the action for partition was filed, it was within the power of the • court to grant the receiver relief against the consequences ‘of his delay;
    'That the fact that the receiver was led to believe that the life- tenant would file the necessary consent at the proper time, presented a proper case in which the court might grant the receiver the relief asked for.
    Appeal by the defendants, Bobert T. Powell and another, from .-an order of the Conn'ty- Court of Queens County, entered in. the office of the clerk of the county of Queens on the 7th day of March, 1896, directing that William A. Onderdonk, as receiver of the .goods, chattels and credits of Bobert T. Powell, be made a defend•ant in the action, and that said receiver be authorized and directed to file with the court a consent to accept a sum in gross, in lieu of the life estate of the defendant Bobert T. Powell, in the net one-third of the proceeds of a sale of land in which said Powell had a life estate.
    
      A. W. Weller, for the appellants.
    
      Edward E. Sprague, for the respondent.
   Hatch, J.:

Charles Powell, by his will, devised an undivided one-third of certain premises to his son, Robert T. Powell, for his life, with remainder over to his issue. Robert S. Powell is the only child of Robert T., and takes as remainderman under the devise. The plaintiff is a daughter of the testator, and also took a life estate in one-third of the premises under the .will. She brought this action to partition the lands; an interlocutory decree was entered therein by virtue of which the premises were sold and the proceeds, less expenses, were paid over to the county treásurer of Queens county.

Prior to the commencement of the partition action judgments were recovered by Richard Brower and George Willets against the life tenant, Robert T. Powell, and the judgment creditors were made parties defendant therein. While this action was pending, proceedings supplementary to execution were instituted against the life tenant upon said judgment, and Onderdonk was duly appointed receiver. The interlocutory decree in the partition action provided that unless the life tenant should file his consent to accept a sum in gross on or before the filing of the report of sale, the one-third of the net proceeds of the sale be paid into court to be invested, and that, in case such consent be filed, the value of the life estate be ascertained and paid into court as a separate fund, subject to its further order. The life tenant failed to file his consent to receive a gross sum, and the proceeds of the sale having been paid over to "the county treasurer, the receiver applied to the court to be admitted as a party to the action and for leave to file his consent as receiver, and as the person upon whom the life estafé had descended, to receive a gross sum in lieu of the income. The application was granted, and from the order entered thereon the life tenant and the remainderman bring this appeal. The judgments which the receiver represents more than equal the value of the life estate. Consequently, with the disposition of this appeal the life tenant has little concern. By virtue of his appointment, the receiver became vested witii all the right, title and interest of the life tenant in the estate (Powell v. Waldron, 89 N. Y. 328.; O'Connor v. Mechanics' Bank, 54 Hun, 272), and became, by his appointment, literally, a tenant ptor autre vie (2 BL Com. *123); And whether he be permitted to take a gross sum, or is to be remitted to the income to be derived by investment, the life tenant is not prejudiced, for, in either event, his life estate is gone beyond recall; he is, therefore, without substantial interest-upon this appeal.

By section 1569, Code of Civil Procedure, it is provided that, where the estate of a life tenant is converted into money, he becomes entitled to receive from the proceeds a gross sum to be fixed according to the principles of law applicable to annuities in satisfaction of such interest. In order to accomplish this result, the life tenant is required to file a consent in writing to receive such gross sum, which consent must be acknowledged and certified in like manner as a deed to be recorded, at the time of or before the filing of the report of sale. If such consent is not filed, then the proceeds of the sale must be invested for the benefit of the life tenant.

In the present case, the- life tenant made and filed no consent to accept a gross sum, and it is now claimed that the court is without power to allow the receiver to file a consent to take a sum in gross, for the reason that it is a personal right resting in the life tenant, and does not pass to the receiver; and, further, that it is in derogation of the property rights of the remainderman. As to' the first claim, it is not contended but that the whole-interest in the life estate passed to and vested in the receiver; he became, in fact and in law, the life tenant, and we think he succeeded to all the rights and privileges which the life tenant possessed in the property, and could exercise any right with respect thereto which the life tenant might have exercised. We'-are unable to see that the remainderman is prejudiced by this ruling; he takes the estate under the devise, subject to this contingency of election; consequently, in no legal sense is he deprived of any property or right. The receiver has added no burden to the remainderman’s estate, nor subjected it to any other or greater or different charge than it was subjected to in the hands of the life tenant. When the gross sum is taken the estate of the remainder-man is left to accumulate during the existence of the life tenancy. At the expiration of that period, in the eye of the law, the estate will then equal in value what it was when the gross sum was carved therefrom. At common law the right of succession to a life estate was recognized, and the successor in interest took the entire estate and rights of the life tenant. The Code provision has not changed any property right in this regard; it has provided a remedy to meet existing conditions, and simplified methods of determining property rights under such circumstances. There is no difference in principle, that we can discover, between reaching the life estate which obtained in this proceeding and proceeding by forms of law to reach the dower interest of a widow, which authority has sustained. (Payne v. Becker, 87 N. Y. 153.)

We readily concur in the suggestion that there may be circumstances where the court would not permit a creditor who had succeeded to the life interest to take a gross sum from the proceeds of the estate, or permit the life tenant to do so. Such case would be presented where its allowance would defeat the intent of the testator, or where it appeared that the life tenant could only survive for a short period, and it would be manifestly unjust to the remainder-man. It is sufficient now to say that we are presented with no such case. As to the claim that the right of election must be made when the report is filed, we are of opinion that it was clearly within the power of the court to grant relief therefrom. (Code Civ. Proc. § 783.)

There was evidence from which the court could find that the receiver was led to believe that the life tenant would file the necessary consent at the proper time, and that he omitted to take affirmative steps to produce this result on account thereof. Consequently, a case was made in which it was proper for the court to grant relief.

It follows that the order appealed from should be affirmed, with ten dollars costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  