
    Aaron G. Underhill, Respondent, v. J. Warren Underhill and Others, Defendants, Impleaded with Ophelia G. Underhill, Appellant.
    
      Partition — an order that the administrator of the common ancestor he made a party, is improper — Laws of 1896, chap. 277; Gode of Givil Procedure, § 1538.
    During the pendency of an action for partition, brought within-three years after the issuance of letters of administration upon the estate of the common ancestor, his administrator filed a petition with the surrogate for leave to sell the real estate sought to be partitioned for the payment of the debts of the deceased. The plaintiff in the partition suit then applied for an order amending the summons so as to bring in the administrator and also all the general creditors of the estate, which was granted.
    
      Held, that the order was erroneous;
    That the provisions of section 1538 of the Code of Civil Procedure, as it stood prior to the amendment of 1896 (Chap. 277), that “In a partition action -the executors or administrators and creditors of a deceased person who, if living, should be a party to said action, must be made parties defendant,” were not applicable, as the common ancestor was not a person who, if living, should be made a party to the action, as in such case there could be no such action; that that provision applied only to the case of a deceased owner of an undivided share.
    Appeal by the defendant, Ophelia G. Underhill, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Westchester on the lUh day of March, 1896, amending the summons and complaint herein by adding additional defendants.
    
      Henry C. Griffin, for the appellant.
    
      William E. Van Meter, for the respondent.
   Per Curiam :

This is an action for partition. It was brought within three years after the issue of letters of administration upon the estate of the common ancestor, through whom all parties claimed title. Pending the action it appears, by a final decree on the judicial settlement of the accounts of the administrator, that the personal assets were insufficient to pay the debts of the deceased, and thereupon the administrator filed a petition with the surrogate for the sale of the real estate sought to he partitioned. The plaintiff then applied for an order amending the summons so as to bring in the administrator of the deceased, and also all the general creditors of the estate. The application was granted at Special Term, and from such order this appeal is taken.

We are of opinion that the order of the Special Term was erroneous. The respondent seeks to support it under the provision of section 1538, Code of Civil Procedure: “In a partition action the executors or administrators and creditors of a deceased person who, if living, should be a party to said action, must be made parties defendant.” The appellants contend that this provision applies only to the case of a deceased owner of an undivided share. We think this is the correct view. The common ancestor can in no sense be a person “ who, if living, should be a party to said action,” because if he were living there could be no such action. This also seems to be the view of the Legislature. By chapter 277, Laws of 1896, which takes effect September 1,1896, this section of the Code has been amended and a provision inserted therein providing that when the action shall be brought before the expiration of three years from the time when letters shall have been issued upon the estate of the decedent from whom plaintiff’s title is derived, the executors or administrators of the estate of said decedent shall be made parties defendant, an amendment which would be unnecessary if fhe former provision of the Code covered the subject. In Palmer v. Palmer (3 App. Div. 213) we have decided substantially the same question as is here involved adversely to the claim of the respondent.

The order a2)pealed from should be reversed and motion denied, with ten dollars costs and disbursements.

All concurred.

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