
    Charles Yung, Respondent, v. Anna May Blake and Charles Francis Yung, Respondents, Impleaded with Charles Yung and Joseph A. Macpeak, as Executors of and Trustees, under the Last Will and Testament of Anna Louise Yung, Deceased, Appellants.
    First Department,
    April 11, 1913.
    Partition — adjustment of equitable rights of cotenants — reimbursement of cotenant for advancements to improve property — equities as against infant cotenant — termination of trust during pendency of action.
    Where one cotenant expends money in making repairs or . improvements on premises held in common, without authority from his cotenant, he is not entitled to a lien therefor against the interest of the latter.
    But in an action for partition a court of equity requires, as a condition of decreeing a sale, that the equitable rights of the tenants in common, as between themselves, shall be ascertained and adjusted with respect, not only to liens, but to contributions for expenditures made by one without the consent of the other for necessary repairs, which expenditures could not be recovered at common law. The right to such determination rests, not upon the lien,- but upon the equitable maxim that he who seeks equity must do equity.
    Even where one of the eotenants is an infant the court, in permitting bim to participate in the proceeds'of a sale on partition, will require him to reimburse his cotenants for advancements by which the property has been made more valuable.
    Where the cotenants seeking contribution for advancements held as trustees when the action of partition was brought, and since that time the trust has terminated so that the title of the trustees has passed to their cestui que trustent, who are parties to the action, the right to contribution should be determined in the action, although the trustees might protect themselves by an appeal from a decree of the Surrogate’s Court disallowing such advancements, for the determination in the action of partition will be binding upon all parties concerned.
    Appeal by the defendants, Charles Yung and another, as executors and trustees, etc., 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 4th day of February, 1913, amending an order of reference entered in said clerk’s office on the 30th day of January, 1912, by striking therefrom a provision directing that the referee take and state the said defendants’ account as executors and trustees, as prayed for in their amended answer, and report any balance due them and whether such balance is a lien on the interest of any party to the ¡action.
    
      Edward H. Kelly, for the appellants.
    
      Edward J. McGuire, for the respondent Anna May Blake.
   Laughlin, J.:

This is an action in partition. The premises were formerly owned hy the plaintiff and his wife, Anna Louise Yung, since deceased, as tenants in common. She had been married before to one Blake, and during his lifetime she made a will by which among other things in effect the premises in suit were devised to the appellants as executors and trustees, in trust, to devote the income thereof to the care, protection and education of her two daughters during their minority, and upon their arriving at the age of twenty-one years to divide the corpus between them equally. One of the daughters predeceased the testatrix. The respondent Anna May Blake is the surviving daughter, arid, so far as material to this appeal, she took the interest of her sister. After the death of her former husband the testatrix married the plaintiff, and the respondent Charles Francis Yung was born to them on the 28th day of September, 1904. The testatrix died on the 12th day of March, 1908, when the respondent Charles Francis Yung was about three and one-half years of age. The premises sought to be partitioned consist of thirteen parcels of land, all of which with one exception are improved.

Since the death of the testatrix they have been managed and cared for by the plaintiff, and by him and Macpeak as executors and trustees. They have collected the rents and paid the running expenses, and, according to the answers of the appellants, they have expended large sums of money over and above the rents received in making necessary repairs to the buildings upon the premises, and in making necessary improvements thereon, and in paying taxes and assessments and mortgage liens thereon. Of these expenditures the plaintiff individually contributed one-half, and the appellants contributed the other half from funds which they held as trustees for the: respondent Arma May Blake. By virtue of the provisions of section 26 of the Decedent Estate Law (Consol. Laws, chap. 13; Laws of 1909, chap. 18), which re-enacted the provisions of the Revised Statutes (2 R. S. 65, §49, as amd. by Laws of 1869, chap. 22), the infant Charles Francis Yung took the interest in the premises in question which he would have taken had his mother died intestate. That interest, it is claimed on the part of the plaintiff and by the appellants, is an undivided one-fourth interest in remainder, subject to an interest equal to a tenancy by the curtesy in favor of the plaintiff had his wife died intestate; but the plaintiff claims that an estate by the curtesy is vested in him, whereas the executors and trustees claim that they took it as part of the trust estate. The trust had not expired when the action was commenced, but the beneficiary under the trust became of age on July 24, 1911. The original answer of the executors and trustees was verified on July 25, 1911, and served the next day, and in it they asserted in behalf of their cestui que trustent an undivided one-fourth interest in the premises. In this answer they asserted no .claim again the interest of Charles Francis Yung, the infant, for a proportionate amount of the expenditures made for repairs and improvements over and above the rents received. At that time they evidently contemplated that that was a claim to be asserted in behalf of their former cestui que trustent, respondent Anna May Blake, and that they would be allowed on their accounting in the Surrogate’s Court for the amount of such expenditures; but on an accounting in the Surrogate’s Court which covered the period ending December 31, 1909, and on which they claimed a credit for such expenditures, the surrogate disallowed the items. Thereafter and on the 12th day of December, 1911, they interposed an amended answer, in which they asserted in the form of' a counterclaim a lien against the interest of the infant, Charles Francis Yung, for these expenditures. Thereafter and! on September 24, 1912, pursuant to an application duly granted, they interposed a second amended; answer nunc pro tunc as of the date of the service of the first amended answer, in which they made claim for the first timé that they took an estate by the curtesy in the undivided one-fourth. interest which passed to the. infant, Charles Francis' Yung, as part of the trust estate, and in which they also ¡ asserted a lien against the interest of said infant for expenditures made after the 31st day of December, 1909, which was - the date of the accounting in the Surrogate’s Court. The original order of reference, which was granted after the service of the first amended answer, provided, among other things, as follows:.

“And it is further ordered .that said. referee take and state the accounts of the defendants Joseph A. Macpeak and Charles Yung as executors of and trustees under the last will and testament of Anna Louise Yung (formerly Anna Louise Blake), deceased, as prayed for in the said amended answer of said defendants, and : that said referee report whether there is any balance due said defendants, and if so,' whether said balance is a lien on the interest in said premises of any party to this action. ”

After proceedings before the referee had begun and continued for some time, ttie respondent Anna May Blake made a motion to strike out thisiprovision of the order.

It appears to be well settled that where one cotenant expends money in making repairs or improvements on the premises held in common without authority from his cotenant he is not entitled to a lien theiefor against the interest of. the latter (Ford v. Knapp, 102 N Y. 135; Satterlee v. Kobbe, 173 id. 91; Cosgriff v. Foss, 152; id. 104. See, also, Prentice v. Janssen, 79 N. Y. 478); and; therefore, it is unnecessary to consider the various questions ¡which have been presented with respect to the construction of the provisions of the Code of Civil Procedure concerning the rights of lienors. '

The Legislature has expressly provided that any party to such' an action may be required to account for rents and profits (Code Civ. Proc. § 1589); and courts of equity require as a condition of decreeing a' sale in partition that the equitable rights of the tenants in common as between themselves with respect not only to liens (See Halsted v. Halsted, 55 N. Y. 442), hut to contribution for expenditures made by one without the consent of the others for necessary repairs where at common law an action to recover therefor could not be maintained, be ascertained and adjusted. (Cosgriff v. Foss, 152 N. Y. 104, and other cases supra.)

The reported cases on this point arose with respect to contribution claimed against the plaintiff in the action and stress appears to have been laid upon that fact; but the Court of Appeals, in Satterlee v. Kobbe (supra), stated the rule more broadly as follows: In a partition action the court will always adjust equities between tenants in common arising out of expenditures and improvements made by one of them as against the other. (Ford v. Knapp, 102 N. Y. 135.) * * * Relief, such as is here suggested, is administered, not upon the ground that the party making the improvement without the agreement or assent of the owner gains a lien upon the property for his advances, but it rests upon the proposition that one who seeks equity must do equity, and that the tenant out of the actual occupation who asks a court of equity to award him partition is entitled to relief only upon condition that the equitable rights of his cotenants shall be respected.” Here the defendant against whom contribution is claimed, who, however, is an infant, not only does not oppose the sale, but in effect joins in plaintiff’s demand therefor, and his guardian ad litem opposed the motion and insists that the interests of the infant require . that the question as to whether he should reimburse the trustees either individually or as trustee should he determined on this reference. Aside, however, from the attitude of the infant and those who represent him, it is the duty of the court in permitting him to participate in the proceeds of the sale of property, presumably made more valuable by the advancement of funds by his cotenants, to reimburse his cotenants.

A question arises, however, which has not been discussed by counsel, hut which I regard as not free from doubt. The views already expressed would require the reversal of the order if the appellants were still tenants in common with the infant as they were when the action was commenced. But, as has been stated, the' trust terminated before they answered and they thereupon ceased to represent the tenant in common whose funds they used to contribute the infant’s proportionate share. It might well be .argued that at the expiration of the trust the right to contribution became vested in and enforcible by their cestui que trustent, the defendant Blake, and that the remedy of the trustees was to assert their right to credit for such disbursements on their accounting as trustees. If it were so held, then, doubtless, the trustees- could be protected by an appeal from the decree of the Surrogate’s Court disallowing such credit or by an application to open the decree; but in that event the respondent Blake would doubtless be without redress for it would then be too late for her to obtain contribution in this case. I am ¡of opinion, therefore, that it is for the interests both of the appellants and of the respondent to have the question finally ¡determined in this action. Either in them own right or in the right of the respondent Blake, whom they represented at the time, the appellants are entitled to offer proof before the. referee in support of their contention that they advanced trust funds for necessary repairs to which the infant should in equity contribute. The determination of that claim here will be binding and conclusive on all the parties and will obviate the necessity of further consideration by the Surrogate’s Court.

By the second • amended answer the trustees seek to recover for expenditures made after the. termination of them trust. We express no opinion at this time with respect to their right to recover such expenditures and leave that for decision after the facts are fully developed.

It follows that the order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

Order reversed* with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  