
    Pauline Rhoades, Plaintiff, v. Emma Schwartz and Emma Schwartz Ruppert, Defendants.
    (Supreme Court, New York Special Term,
    November, 1903.)
    Specific performance — Enforcibility of a definite agreement to devise property in a particular way — Adequacy of consideration — Parties.
    A contract of Elise Schmid then owner of certain realty and since deceased testate, made with the mother of Pauline and Josephine Schmid by the temas of which Elise agrees to make a devise, and not change it before her death, of her realty to the said mother in trust to apply the income to the support of the said children xontil Paodine attains the age of twenty-five years, division of the realty thea-eupon to be made between the children equally, the said mother to pay while Elise lives all taxes, etc., accruing on the realty, may be enforced by Pauline, who became twenty-five before the death of Elise, against persons subsequently claiming title and possession under the will and deed of Elise devising and conveying the same property to them, but not for a valuable consideration, where the said mother has perfoamed upon her part and Pauline as sole grandchild of Elise is her only natural heir, Josephine the other heir having died intestate and unmarried before Elise and before Pauline became twenty-five.
    The said mother is a necessary party to the action because Josephine had an irrevocable interest in the realty when she died and upon her death her mother inherited one-half of it and Pauline the other.
    I
    The personal representative of Elise should not be a party, no damages being asked from her estate and no relief respecting her personalty.
    Action to enforce specifically an alleged agreement on the part of one Elise Schmid, now deceased, to devise certain real estate in a particular way. Demurrer to complaint.
    Parsons, Closson & McIlvaine, for plaintiff.
    McFarland, Taylor & Costello, for defendants.
   Scott, J.

This action is brought to enforce specifically an alleged agreement on the part of one Elise Schmid, now deceased, to devise certain real estate in a particular way. It is alleged that said Elise Schmid was from 1878 to the time'of-her death in 1900 the owner of the real estate in question; that in the year 1889, being desirous of settling the said premises upon and for the benefit of the plaintiff, and her sister Josephine Schmid, the younger, she entered into a contract with Josephine Schmid, the elder, mother of the plaintiff and Josephine Schmid, the younger, to the effect that the said Elise Schmid would by will so devise the said premises that the said Josephine Schmid, the elder, should have and become seized of the same in trust, however, to apply the income thereof to the maintenance of the plaintiff and her sister Josephine Schmid, the younger, until said plaintiff should attain the age of twenty-five years, and then to divide the said premises, share and share alike, between the plaintiff and her said sister Josephine. It is further alleged as a part of the agreement that said Elise Schmid was not only to make and execute such a will, but also to allow it to stand in full force and effect until her death, doing nothing to defeat the full intention thereof. The consideration for this agreement was the promise and undertaking on the part of Josephine Schmid, the elder, to pay, down to the death of said Elise Schmid, the taxes, Groton water rents and assessments which might be imposed upon the property and the premiums upon insurance against fire upon the building erected upon the premises. It is further alleged that the said Josephine Schmid, the elder, fulfilled the agreement upon her part by paying the taxes, Croton water rents and insurance premiums which she agreed to pay. It is alleged that in violation of her agreement the said Elise Schmid executed a deed and a will under which the defendants claim to be seized and possessed of the property, and for such deed and will, it is alleged, they gave no valuable consideration. Elise Schmid died on February 23, 1900, leaving her surviving no husband, no children and no grandchildren, except the plaintiff, Josephine Schmid, the younger, who was also a grandchild, having died intestate and unmarried in February, 1893. At the time of Elise Schmid’s death the plaintiff had attained the age of twenty-five years. The defendant Emma Schwartz demurs upon the ground that the complaint does not, as to her, state facts sufficient to constitute a cause of action. The defendant Emma Schwartz Ruppert demurs upon 'this ground, and also for that there is a defect of parties plaintiff .in that Josephine Schmid, the elder, and the personal representative of Josephine Schmid, the younger, now deceased, are necessary parties plaintiff, and further, that there is a defect of parties defendant in that the personal representative of Elise Schmid, deceased, is a necessary party defendant. The complaint is based upon the principle now firmly established in this State that where a certain and definite contract is clearly established, even though it involves an agreement to leave property by will, and it has been performed on the part of the promisee, equity, in a case free from all objection on account of the adequacy of the consideration, or other circumstances rendering the claim inequitable, will compel a specific performance. Gall v. Gall, 64 Hun, 600; Winne v. Winne, 166 N. Y. 263. The complaint sets forth a perfectly certain and definite contract on the part of Elise Schmid. The consideration said to have been fully performed was the payment of taxes and other-charges upon the property for some ten years, while the promisor, for aught that appears to the contrary, remained in the possession and beneficial enjoyment of the premises. The persons to be benefited by the agreement were the only .descendants, and, therefore, the natural heirs, of the promisor. There is, therefore, apparent upon the face of the complaint no inadequacy of consideration and no injustice to any natural heir of Elise Schmid, the promisor. Since both of the defendants claim possession and title to the premises under instruments executed in violation of the promisor’s agreement they are proper parties defendant. There is no reason why any personal representative of Elise Schmid, the promisor, should be a party to the action. Ho damages are asked from her estate, and no relief is asked respecting her personal property. The action relates solely to a specified parcel of real estate. Hnder these circumstances there is no necessity for joining the personal representative of the promisor. Colby v. Colby, 81 Hun, 221. I cannot avoid the conclusion, however, that Josephine Schmid, the elder, should he joined as a party plaintiff, or, if she refuses to act in that capacity, as a party defendant. Code Civ. Pro., § 448. It is true that the mere fact that the agreement was made with her for the benefit, of her daughter does not require that she should be made a party to an action for the enforcement of the contract. Godine v. Kidd, 64 Hun, 585; Bouton v. Welch, 170 N. Y. 554. Eor is she a necessary party because the agreement contemplated a devise to her in trust. That trust estate was to continue only until the plaintiff attained the age of twenty-five years, and since she attained that age before the death of the promisor the projected title or estate.to Josephine Schmid, the elder, lapsed, so that upon the promisor’s death, if she had' fulfilled her promise, the title would have passed at once to those for whose benefit the promise was made. There is another aspect, however, in which Josephine Schmid, the elder, becomes a necessary party. When Josephine Schmid, the younger, died in 1893 there was in existence a contract whereby the grandmother had undertaken to transmit to- her the title to one-half the premises-in suit. The agreement had then become irrevocable by reason of the part performance of the consideration, and if the contract was fulfilled Josephine, the younger, must in due time, upon- the happening of the precedent condition, become seized of an interest in the property. The position of Josephine Schmid, the younger, at the time of her death was therefore closely, if not quite, analogous to that of a person who holds a contract for the conveyance of real estate. It is well settled that the interest of a vendee in such a contract is real estate, and in case of his death intestate, descends to his heirs and not to his executor or administrator. Champion v. Brown, 6 Johns. Ch. 398 ; Griffith v. Beecher, 10 Barb. 434; Hathaway v. Payne, 34 N. Y. 103. The complaint shows that Josephine Schmid, the younger, died intestate and unmarried, leaving as her sole heirs-at-law the plaintiff, and her mother, Josephine Schmid, the elder. It seems to be quite clear that upon the death of Josephine, the younger, the mother took by inheritance from her an estate in the property in suit, and is, therefore, a necessary party to an action to determine its ownership. I have not overlooked the allegation of the complaint that the agreement between Elise Schmid and Josephine Schmid, the elder, was made for the express benefit of the, plaintiff and her sister Josephine “ and the survivor of them.” This, however, is merely the statement of a conclusion as to the effect of the agreement, and in so far as it asserts that the agreement was made for the benefit of the survivor is not borne out by the terms of the agreement as recited in the complaint. Because the interest of Josephine Schmid, the younger, under the contract was real estate it is not necessary that any personal representative of hers should be a party. The demurrer of the defendant Emma Schwartz is overruled, with leave to withdraw the demurrer and answer in twenty days. The demurrer of the defendant Emma Schwartz Ruppert, upon the first ground stated by her, to wit, that Josephine Schmid, the elder, is a necessary party plaintiff, is sustained, with leave to plaintiff to amend her complaint within twenty days. The demurrer of said Emma Schwartz Ruppert upon the second, third and fourth grounds stated by her is overruled, with leave to withdraw her demurrer and answer within twenty days.

Ordered accordingly.  