
    Mary E. Side and Frederick Leonhard, Respondents, v. Charles Brenneman and Elizabeth Brenneman, Appellants, Impleaded with Josephine Kager and Others.
    
      Partition suit—waiver of a trial by jury—decree of a surrogate adjudging that an executor has invested money of the estate in.real property to the extent of a certain proportion of the value thereof— the persons entitled to the estate cannot maintain an action for the partition thereof.
    
    An action in partition is triable by a jury; but where, at the request of the plaintiffs, the action has been tried by the court, which has rendered a short decision under section 1022 of the Code of Civil Procedure, the plaintiffs cannot complain if the court, upon appeal, determines the question as to the right to maintain the action as if the case were one triable at Special Term.
    A surrogate’s decree in substance adjudged that moneys of an estate had been invested by the executor in certain real property; that about §12,000 of §29,000 invested by the executor in such real estate was money of his testator’s estate, and that he be charged with such interest in such real property as an asset of the estate subject to existing mortgages; and that each of two parties named was entitled to one undivided eighteenth equal part or share of the real property, and had been entitled to its possession since July 24, 1891, and to its rents, issues and profit since August 23, 1892.
    
      Held, that this decree did not vest in such parties a legal title in an undivided interest in the property;
    That such parties did not hold and were not in possession of such real property, either as joint tenants or as tenants in common, and were not, therefore, in a position to maintain an action for a partition of the premises.
    Appeal by the defendants, Charles Brenneman and another, from a judgment of the Supreme Court in favor of the plaintiffs and the defendants, Josephine Eager and others, entered in the office of the clerk of the county of Yew York on the 28th day of March, 1896,. Upon the decision of the court rendered after a trial at the Hew York Special Term.
    
      Howard Y. Stillman, for defendant Elizabeth Brenneman.
    
      Daniel G. Rollins and Robert Hunter McGrath, Jr., for defendant Charles Brenneman.
    
      Henry A. Forster, for Mary E. Side and others, respondents.
    
      John T. Fenlon, guardian ad litem, for Edward Leonhard, respondent.
   Ingraham, J.:

We think, as this action is clearly an action for partition, that the defendants’ demand for a trial by a jury, should have been granted, as under section 1544 of the Code of Civil Procedure an action for' partition is triable by a jury. The case, however, having been tried by the court without a jury on the demand of the plaintiffs, and the court having rendered a short decision under section 1022 of the Code of Civil Procedure, the plaintiffs cannot complain, if we consider the case as one triable at Special Term and determine the question involved as we would an action there triable.

The only cause of action alleged is one for the partition of real property. The complaint alleges the execution of the decree of the surrogate, which will be hereafter referred to, and then : “ That the plaintiffs and the defendants, Charles Brenneman and Josephine Eager and Edward Leonhard, are seized in fee and possessed of the premises hereinbefore described, as tenants in common, and they own no other real property in common.” Then follows a statement of the respective interests of the parties in the real property, described, and the complaint demands judgment for a partition of the said premises thereinbefore described between the parties interested; or, if an actual partition thereof cannot be had without prejudice to the. owners, then for a, sale of the said premises and a division of the proceeds thereof.

There is no allegation in the complaint from which it would appear that the plaintiffs had any lien upon the said premises,- nor is the court asked to establish or enforce a lien; and upon this complaint the 'right of the parties to any relief must depend upon whether or not it was established that the parties to the action, or some of them, held the premises described in the complaint as joint tenants or tenants in common.

The answer of these defendants denies all of the substantial allegations of the complaint, and upon the pleadings the case came on for trial. The only evidence offered for the plaintiffs was the testimony of Mary E. Side stating her relationship to the defendants, and the age of the parties, together with a description of the property in the complaint, and the allegation that she owned no property in common with the defendants, except the. property in question. The plaintiffs then offered in evidence the decree of the surrogate set forth in the complaint, and also a judgment of the General Term of the Supreme Court affirming that decree. This decree and judgment were objected to by the defendants, the objection overruled, an exception taken by the defendants, and the parties thereupon rested.

We have first to determine whether or not this decree is evidence competent to prove the allegations of the complaint, that the plaintiffs are seized in fee and possessed of an undivided interest in the real estate described in the complaint. The decree mentioned was entered upon an accounting of the defendant Charles Brenneman,. appellant, as' executor of an estate in which the plaintiffs were interested. Upon that accounting it was adjudged that certain money of the estate had been invested by the executor in the property in question; that said executor was charged with a cash balance in his hands of $13,827.37, and also this undivided interest of substantially twelve-twenty-ninths of the Houston and Mott street property subject to mortgages aggregating $42,000 in the hands of the executor. And the surrogate’s decree then contains the following provision: “ And it is further ordered, adjudged and decreed that $12,388.71 of the $29,188.36 invested by the executor in the property at the southwest corner of Houston and Mott streets, being about 63 feet, 4 inches wide on Houston street by 76 feet, ^ inch on Mott street, was money of the estate of Frederick Leonhard, deceased; that the executor is charged with of said property as an asset of the estate, subject, however, to mortgages thereon amounting to $42,000 ; that Mary E. Side is entitled to one undivided eighteenth equal part or share of said property, and has been entitled to the possession thereof since July 24, 1891, the date of the death of the life tenant, Margaret Leonhard, and to the rents, issues and profits thereof since August 23, 1892; that Frederick Leonhard is entitled to one undivided eighteenth equal part or share of said property, and has been entitled to the possession thereof since July 24, 1891, the date of the death of the life tenant, Margaret Leonhard, and to the rents, issues and profits thereof since August 23, 1892.” Did this decree vest in the plaintiffs a legal title or interest, as joint tenants or as tenants in common in the property ?

By section 1532 of the Code, to entitle a person to maintain an action for a partition, it. must appear that two or more persons hold and are in possession of real property, as joint tenants or as. tenants in common,” It is not enough that a person is entitled to a conveyance of an interest in real property which a court of equity could enforce, but a legal title to such real property must, vest in two or more persons, as joint tenants or as tenants in common. We think it clear that tins decree, even assuming that the surrogate had jurisdiction by a decree to-vest a title to real property-in the plaintiffs, fails to accomplish that result. The surrogate found, that the executor had invested certain mon'eys'of the estate in this real-property ; that he held that interest in the real property as an asset: of the estate, but that the legal title 'to such property was in the-executor individually, and not as executor; and that the interest of' the estate, or the beneficiaries thereof, arose because of a trust that' .resulted in their favor, the property of the estate having been invested in such real property. That being the fact, the surrogate-decreed that the executor held this interest in the real property, not individually, but as executor of the estate, and that the various, beneficiaries were entitled to an interest in the estate and to the-possession thereof. Mo provision, however, directs the executor to -transfer the legal title to the beneficiaries. Mo provision in the-decree adjudges that the legal title is in the beneficiaries, nor does-the decree attempt to put the beneficiaries in possession. It simply adjudicates as to their rights in certain property of the estate which is in the hands of the executor, without attempting formally to distribute such estate. Without attempting, therefore, to determine-jnst what jurisdiction the surrogate had to compel this trustee to-convey to the beneficiaries their interest in this estate, or without-determining whether or not as between the trustees and these beneficiaries this property is to be considered real or personal, it is sufficient to say that the decree of the surrogate does not attempt to make any adjudication as to the legal title of the property, and does not attempt to put the beneficiaries in possession of the property. In equity this executor, as trustee for the plaintiffs and their beneficiaries under this decree, would undoubtedly hold the interest in the estate as property in which had been invested certain moneys of the estate, and of which these. plaintiffs were entitled to their proportionate share. This interest in real property thus being treated as an asset of the estate, upon an accounting the surrogate undoubtedly would have jurisdiction to adjudge that such real property was an asset of the estate held by the executor. This is the extent of the decision, as we understand it, of the General Term of the Supreme Court on the appeal from the decree of the surrogate. "Whether or not the surrogate would have jurisdiction to direct the executor to distribute this estate among the beneficiaries by making a conveyance to them which would vest in them the undivided interest in the estate to which each of them is entitled, or would have jurisdiction by a proper decree to compel the executor to sell this interest of which he was executor, and to divide the proceeds among the beneficiaries according to their respective interests, are questions that it is not necessary for us to determine upon this appeal, as the surrogate has not attempted to exercise such jurisdiction. ■ He has only attempted to define the interest of the estate which has been invested in this real estate, and has adjudged that the executor held that interest as executor for the benefit of the beneficiaries. Such adjudication went far short of holding that the beneficiaries were the owners, and are in possession of real property as joint tenants or as tenants in common.

We think, therefore, that the evidence failed to show that the plaintiffs were the holders, or in possession of any real property in common with the defendants, and that the complaint should have been dismissed.

The judgment is reversed and the complaint dismissed, with costs.

Van Brunt, P. J., Williams, Patterson and O’Brien, JJ., concurred.

Judgment reversed and complaint dismissed, with costs.  