
    Mary Goodwin, Respondent, v. Jonathan J. Crooks and Others, Respondents. Hugo Cohn and Others, Appellants.
    
      Purchaser at a partition sale—what he must show to be relieved from his bid — when interest begins to run on a legacy—presumption as to personalty where a legacy is charged on land.
    
    A purchaser at a sale in partition will not be relieved from his bid unless he establishes facts creating such a doubt concerning the validity of the title to the property as will affect its value and , interfere with its sale to a reasonable purchaser.
    
      A legacy does not begin to bear interest until the expiration of a year after the appointment of an executor of the will.
    "Where a legacy is made a charge upon land it will be presumed, in the absence of evidence to the contrary, that the testator left sufficient personal property to pay the- legacy without resorting to the land.
    Appeal .by Hugo Cohn and others, purchasers at a sale in partition, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of December, 1900, denying their motion to be relieved from their bids and compelling them to take title to certain real estate.'
    
      Herbert S. Ogden, for the appellants.
    
      Lucius A. Waldo, for the respondent, plaintiff.
   Rumsey, J.:

This action was brought for the partition of certain lands. Judgmént was entered in due form and the lands were directed to be sold. They were advertised by the referee and were sold to the appellants, who at the time of closing the contract refused to complete their purchase, and thereupon moved at Special Term to be relieved from it because of four objections to the title.

These objections will be considered in their order, but before proceeding to the consideration of them it is proper to call attention to the fact that when a judgment in partition has been entered in due form in a case where the court has acquired jurisdiction of the parties, the presumption is that the judgment is correct, and a' person who bids at the sale will not be relieved from his bid unless he states facts tending to show that the objections which he makes have a reasonable foundation. A purchaser cannot justify his refusal to perform his contract by a mere captious objection to the title tendered him. Before he can successfully resist performance of his contract on the ground of defect in the title, there must be at least a reasonable doubt as to' its validity — such a doubt as affects its value and would interfere with its sale to a reasonable purchaser and thus render the land unmarketable. (Hellreigel v. Manning, 97 N. Y. 56.) It is not sufficient in such cases for the purchaser to say simply that certain facts may exist which, if they do exist, Would throw doubt upon the title, but he must at least give some suggestion of evidence to warrant the court in inferring that the defects which invalidate the title do exist, and unless such facts are stated the title will not be impeached. (Lenehan v. College of St. Francis Xavier, 51 App. Div. 535.)

The title in this case was derived from James E. Gallagher, who in 1843 made a will which was admitted to probate in 1845. By that will he left all his real and personal property, including the real estate in question, to his wife, Ellen Gallagher, for life, With remainder to be equally divided between the children of John Grady and his relations on his father’s side,, etc. The first objem tion to the title is that it does not appear that John Grady is dead ; that he is not made a party, and that neither were his children nor his heirs at law. This objection is not founded upon fact. There was evidence which satisfied the referee that Grady was dead, and as his heirs at law were made parties as unknown persons, pursuant to section 451, Code of Civil Procedure, objection, therefore, is not well taken.

The next objection is that the persons entitled to the interest of one Frederick Ackland are not parties. Ackland married one of the cousins of the testator, who was entitled to an estate in remainder of one-seventh in these premises. She died, leaving one son, who subsequently died, and thereupon this interest became vested in Frederick Ackland. He afterwards married a daughter of another cousin of James Gallagher’s, who was entitled to an estate in remainder of one-thirty-sixth in this land. By her he had two children, who were living at the time of her death. These children became the owners of the one-thirty-sixth of which their mother was seized, and at the death of their father they also became possessed of the one-seventh of which he died seized. They died without ever having married. The referee determined that their one-thirty-sixth derived from their mother descended to her brothers and sisters. As to that there is no dispute. He also held that the one-seventh inherited from their father passed to the same persons. It is claimed that this finding is erroneous because, if Frederick Ackland had brothers and sisters, this one-seventh interest which his children inherited from him would pass • to them, and would only go to the brothers and sisters of their mother in case their father had none. But there is no evidence that he ever had any brothers and sisters, nor is there any presumption of that fact, and the affidavits submitted upon this motion, and which were procured at the request of the appellants, show that Frederick Ackland had no brothers and sisters, and, therefore, the presumption of the correctness of the judgment which arises from its rendition is strengthened by the extrinsic facts.

James E. Gallagher bequeathed $1,000 of his property to be divided equally between his godsons, Barnard and Edward Hanigan, and he authorized his wife to give $1,000 out of his real and personal property to any one she might see fit to leave it to. She left it to John S.. Hanigan. It is objected that these two legacies were charged upon the land, and the judgment so determines, but that a sufficient amount was not reserved out of the proceeds to pay the legacy to John S. Hanigan, and that the incumbrance upon the land was not discharged. Mrs. Gallagher died in 1879, and the appellants claim that this legacy bore interest from that time. In respect of that it may be said, in the first place, that the legacy does not bear interest until one year after the appointment of an executor. (Bradner v. Faulkner, 12 N. Y. 472.) As no executor has been appointed, certainly the legacy has not thus far borne interest. In the next place, although it may be said that the legacy is a, charge upon the land, yet as it does not appear that there is not sufficient personal property to pay it, it is to be presumed that it will be paid out of this personal property without resorting to the land. (Hoes v. Van Hoesen, 1 N. Y. 120.)

In the absence of sufficient proof that there was not enough personal property to satisfy this legacy, bringing the money into court can only be required out of abundant caution and certainly it does not increase the charge upon the land.

It appeared that Edward Flanigan, who was entitled to one-half of the legacy of $1,000 left by James Gallagher to his godsons, was dead and that Annie, his wife, had been appointed administratrix. Edward and Barnard Hanigan were brothers. The court had before it the administratrix of Edward Hanigan and the next of kin of Barnard Hanigan, all. of whom were parties to the action, and it divided the amount of this legacy among these persons as their interest appeared. It is complained that the court had no power te do this. So far as Edward Hanigan. is concerned, there can be no doubt that when his share of the legacy was' paid to his administratrix the' land was discharged of any other lien upon it.- As no administratrix was ever appointed of the estate of Barnard Hanigan, and as it does not appear that he left any will, and as it does appear • that he was á lunatic and that a committee had been appointed for him, and that he has been dead seven years, it is hardly worth while, in the absence of any proof that there were creditors or any one else entitled to his share, to consider any objection made to this title based upon the possibility that he may have bequeathed this legacy to someone else.

Upon the whole case we are clear that the title is a good one and that the purchasers should be compelled to take it, and the order should, therefore, be affirmed, with ten dollars costs and disbursements.

Yan Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.

Order affirmed,, with ten dollars costs and disbursements.  