
    
      In re Rider’s Estate.
    
    
      (Supreme Court, General Term, Fifth Department.
    
    October 19, 1889.)
    Vendor and Vendee—Contract—When Title Passes.
    Though persons went to live on testator’s land under an arrangement whereby they were to have the same at his death, the arrangement being recognized by the testator during his life-time, and in his will disposing of the land, the title to the land remained in him until his death.
    Appeal from surrogate’s court, Chautauqua county.
    Petition by Bersheba Chipman for the sale of the real estate of Nathaniel T. Eider, deceased, for the payment of debts
    Argued before Barker, P. J., and Dwight and Macombbr, JJ.
    
      Obed Edson, for appellants. O. W. Chapman, for respondent.
    
      
       Affirming 3 N. Y. Supp. 274.
    
   Barker, P. J.

This proceeding was begun by petition to the surrogate’s court of Chautauqua county to compel the sale of the real estate of Nathaniel T. Eider, deceased, for the payment of his debts. The application was opposed by Emily. J. B., Warren M., George W., and Grant A. Hunt, who claimed an interest in the real estate sought to be sold, and who denied the jurisdiction of the surrogate’s court over the parties and subject-matter. The contestants also denied that the said Eider, at his decease, had title to, or was the owner of, or had any interest in, the real estate in question, or that the said Eider was seised or possessed of said real estate, or any real estate, at the time of his death. The contestants further allege that, prior to the death of the said Nathaniel T. Eider, the said Emily and Judah B. Hunt were in possession of said premises under an agreement or understanding between them and the said Nathaniel T. Eider, previously made, that they should have and own said real estate upon the performance of certain conditions and considerations, which were fully performed and fulfilled, and they thereupon became the holders and owners thereof, and were such owners at the decease of said Eider. Upon the issues thus presented, the surrogate of Chautauqua county made an order, pursuant to section 2547 of the Code of Civil Procedure, directing the following questions of fact to be tried at a circuit court, to-wit: “First. Whether the said Nathaniel T. Eider died seised of the title to said real estate. Second. Did the said Nathaniel T. Eider, at his death, own any title or interest in said lands? and, if so, what title or interest?” The issues thus framed were brought to trial before the Chautauqua county court and a jury. The jury answered the first question of fact submitted to them in the affirmative. The second question was not answered. A motion for a new trial was made by the contestants before the surrogate of Chautauqua county, in pursuance of section 2548 of the Code, and the surrogate denied the motion, and from the order denying the motion for a new trial this appeal is taken.

Upon the trial, it appeared by the undisputed evidence in the case that the contestants Judah B. Hunt and Emily Hunt moved onto the real estate in question, some time about 1862, under an arrangement with said Rider by which they were to acquire an interest in the real estate in question. The arrangement is differently stated by different witnesses examined on the trial. In the last will and testament of the said Rider the testator recites that “whereas, I have lived with, and have had my support and maintenance with, J. B. Hunt and Emily Hunt, his wife, (who is my niece,) for many years past, with the understanding that they should have my real estate at my decease, now, in consideration thereof.” The will proceeds to dispose of his real estate to the contestants and their children. Mrs. Emily Hunt testified that the arrangement was that if “we go there, and take care of him through sickness and in health, we was to have what was left of the farm, and everything else that he had.” Other witnesses were called, stating the arrangement in different language, as admitted or stated by the testator in his lifetime. In any event, it appeared that at the time of the death of the testator the legal title remained in Hathaniel T Rider, who devised it by his will to Mrs. and Mr. Hunt and their children. There can be no question but that the contestants J. B. Hunt and his wife, Emily, however, acquired by the verbal agreement with the testator, and their acts in pursuance of it, an equitable interest in the property in question; but, upon their own showing, that agreement did not entitle them to the ownership of the property in question until the death of Rider. Whatever that verbal agreement was, equity will enforce; but, notwithstanding the equities of the contestants, Rider was and remained seised of the legal title to the real estate in question at the time of his death. We are therefore of the opinion that, upon the case as presented by the contestants themselves, the jury could only have answered the question submitted to them in the affirmative. If this be true, then the contestants cannot well claim here that they have suffered injury by the finding of the jury or the rulings of the court on the trial. For these reasons alone, the order appealed from should be affirmed. We are, however, constrained, in this connection, to say that in our opinion the finding of the jury has not, and cannot, aid the surrogate in the final disposition of the application for the sale of testator’s real estate-; for, whatever equities the contestants have in the real estate in question, it becomes the duty of the court to protect, in the final disposition of this proceeding, notwithstanding the fact that Rider may have died seised of the real estate. Just what those equities are we do not now undertake to determine. These matters are left for the consideration of the court in the future proceedings had herein. Order appealed from should be affirmed. All concur.  