
    Polly Bogert, App’lt, v. David J. Bogert, Exr., etc., et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 24, 1889.)
    
    Parties—Husband of joint tenant who died intestate necessary PARTY TO ACTION OF PARTITION.
    The husband oí a person, who died iniestate seized oí an undivided interest in certain premises prior to the commencement of an action for the partition ot the same is a necessary party to such action.
    
      Appeal from order compelling purchaser to take title.
    
      P. Q. Eckerson, for app'lt; G. W. Pleasants, for resp’ts.
   Van Brunt, P. J.

This was a motion to compel the purchaser at a partition sale to take title.

Various objections were raised upon the hearing of the motion in the court below, but whether the objection now raised, namely, that Charles Moyer, who was the husband of Mary E. Brinkerhoff, who died intestate, has a life interest in the portion of the premises belonging to his wife, and should have been made a party to this action, was taken or not it is impossible to determine.

Various other objections were taken which seem to have been properly overruled, but which it is not necessary to discuss, because of the conclusion at which we have arrived in regard to the objection which has been above stated.

It appears that Mary E. Brinkerhoff, in her lifetime, was seized of an undivided share of the premises in question; that she married Charles Moyer and died intestate prior to the commencement of this action, leaving her surviving her husband and three children, and by the decree in this action it is found that said three children were each entitled, us the heirs of their mother, to l-252nd part thereof. It seems to be clear that the husband of Mary E. Brinkerhoff, at her death, as tenant by the custesy, was entitled to a life estate in this undivided share, and in order that a complete and perfect title might be made, he should have been made a party to the action.

Why he was omitted we do not know, but it is clear that lie was entitled to such life estate and that his interest is not cut off by this decree.

We think, therefore, for this reason, that the order should be reversed, but, under the circumstances, without •costs.

The case, upon this appeal, has been made up without an index, contrary to the rules, and as a result the labor of the ■court, in examining the facts,' has been very materially increased.

The order must be reversed, without costs.

Cullen, J., concurs.  