
    WOOD v. HUBBARD et al.
    (Supreme Court, Appellate Division, Fourth Department,
    May 7, 1898.)
    1. Wills—Construction—Death op Devisee—Intestacy.
    When a wife is made a specific devisee, and also sole residuary legatee, under her husband’s will, by which will her husband also specifically disinherits one of his children, and the death of the husband occurs subsequently to that of his wife, the husband dies intestate as to the property willed to his wife, and the child will' take a share of that property as though no will had been left.
    2. Partition—When Allowed.
    When executors are given the power, under the will, to sell any real estate not specifically devised, until such sale has actually been made, that part of the estate affected by the provision will be treated as realty, and partitioned among those who are tenants in common of it, upon suit brought by one of such tenants; such partition to be subordinate to the rights of creditors in the property.
    8. Same—Costs.
    A plaintiff in an action in partition, who is given judgment, is entitled to costs, although the amount and manner of payment cannot be determined until the property is sold.
    Appeal from equity term, Monroe county.
    Action by Sarah L. Wood against Richard P. Hubbard and others. From an interlocutory judgment for the plaintiff, defendants appeal.
    Affirmed.
    One Richard P. Hubbard, Sr., the father of the plaintiff, departed this life on the 22d day of June, 1895, leaving a last will and testament, which was executed on the 10th day of September, 1889, to which there was annexed a codicil bearing date the 17th of January, 1893. The will contained several specific devises of real estate to the testator’s wife, Louisa E. Hubbard, who was also made the residuary devisee and legatee of the testator’s estate; but she died on the lltli day of June, 1894, about one year prior to the death of her husband. The will also devised certain specific property to the plaintiff, which devise was subsequently revoked by the codicil; the testator therein declaring that it was his desire that the plaintiff should not, under any circumstances, inherit or receive any portion of his real or personal estate. By the twenty-third clause of the will the testator’s wife and the defendants, Richard P. Hubbard, Valeda (Leeda) Howell, and Zella Sprague, were designated as the executors thereof, and authority was given to them, “or so many of them as shall duly qualify under this appointment, to sell and convey by deed any portion or all of [the testator’s] real estate not hereinbefore specifically devised, and to do any other act or thing requisite and necessary to carry into effect the provisions of [his will].” Subsequently the defendants above named duly qualified as surviving executors, and entered upon, and have ever since continued in, the discharge of their trust.
    
      Argued before HARDIN, P. J., and FOLLETT, ADAMS, GREEN, and WARD, JJ.
    Cassius 0. Davy, for appellant Richard P. Hubbard.
    John Van Voorhis, for appellants Somers and others.
    William A. Sutherland and Willis H. Coon, for respondent.
   ADAMS, J.

The plaintiff, as an heir at law of her father, Richard P. Hubbard, brings this action to partition lands situated in the counties of Ontario, Monroe, and Genesee, which were owned by the testator at the time of his death, and as to which it is claimed he died intestate. Inasmuch as the testator’s wife was the sole residuary, as well as a specific, devisee, all the devises to her which were contained in the will of her husband undoubtedly lapsed upon her death, and the decedent died .intestate as to the lands which would otherwise have gone to her. In re Wells, 113 N. Y. 396, 21 N. E. 137. The defendants, while raising no issue as to this proposition, nevertheless assert that this action ought not to be maintained, for two reasons-. (1) Because the plaintiff, in consequence of the disinheritance clause of the codicil, took no title to any of her father’s estate; and (2) because of the power of sale which the will contains, authorizing the executors to sell any or all of the testator’s real estate not specifically devised.

It is true that the codicil does express an intention and desire upon the part of the testator to deprive the plaintiff of any right to, or share in, any portion of his estate, either as heir at law, devisee, or legatee, but it omits to provide to whom that portion of the realty to which his daughter would naturally be entitled shall go. In other words, it contains no legal devise of the real estate to which the plaintiff would be entitled under the will, and, as the person to whom the testator attempted to devise the remainder was not in existence at his death, the plaintiff’s right to share therein is unaffected by mere words of disinheritance. Gallagher v. Crooks, 132 N. Y. 338, 30 N. E. 746.

The second ground upon which the defendants rest their contention seems, at first glance, to possess more force. The will in question does undoubtedly contain a power of sale, and one which is quite likely to be called into operation; for the executors thereof are authorized and empowered to pay all debts and funeral expenses of the testator, in addition to several legacies of considerable amount, and it appears by the. uncontradicted evidence of the plaintiff’s own witness that the funds in the hands of the executors will be insufficient for that purpose. It is apparent, therefore, that the power of sale which the will contains is something more than a mere naked, discretionary power. It is rather one which-, from the necessities of the case, the executors may possibly be called upon to exercise; and it is likewise one which they may be compelled to exercise at the instance of a creditor. In re Gantert, 136 N. Y. 106, 32 N. E. 551. Nevertheless, as the power of sale is not absolutely imperative, we think that, until the executors shall have actually exercised the same, the residuum of the testator’s estate must be treated as realty, and not personalty, and that the power of sale presents no sufficient reason why the plaintiff should be denied her legal right to seek and obtain partition of lands in which she has an estate of inheritance as a tenant in common. Mellen v. Banning, 72 Hun, 176, 25 N. Y. Supp. 542; Palmer v. Marshall, 81 Hun, 15, 30 N. Y. Supp. 567. Such a right, however, is subordinate to the paramount rights of creditors; and, inasmuch as three years had not elapsed from the granting of letters testamentary when this action was commenced, the lands affected thereby, whether partitioned or sold, would still remain charged with the payment of the debts of the decedent, and a purchaser thereof would take title thereto, subject to any claims which could be legally enforced against the same. It was to meet just such an emergency as this that the legislature, by. a recent amendment to section 1538 of the Code of Civil Procedure, enacted that:

“Where the action is brought before three years have elapsed from the granting of such letters of administration or letters testamentary, as the case may be, upon the estate of the decedent from whom the plaintiff derived his title, the final judgment shall direct that the proceeds of the sale remaining after the payment of the costs, referee’s fees, expenses of sale, taxes, assessments, water rates, and liens established before the death of the decedent including any sum allowed to a widow in satisfaction of her right of dower therein directed to bo paid, be forthwith paid into court by the referee making such sale by depositing the same with the county treasurer of the county, in which the trial of the action is placed, to the credit of the parties entitled thereto, to await the further order in the premises.” Laws 1896, c. 277.

It is further provided by the same section that upon the certificate' ■of the surrogate, showing that three years have elapsed since the issuing of letters testamentary, and that no proceedings are pending in the surrogate’s court to mortgage, lease, or sell the decedent’s real property, and upon the certificate of the county clerk showing that no notice provided for by section 2751 has been filed, the court may make an order directing the county treasurer to pay over to the parties to the action the moneys so deposited in court. The record before us does not disclose just when letters testamentary were issued, but, inasmuch as the testator died less than three years prior to the commencement of the action, the final judgment herein will doubtless, in compliance with the requirements of this statute, contain a provision which will furnish ample protection to the rights of all concerned; and, this being the case, it relieves the appellants’ second contention of all apparent force.

But it is further insisted that the awarding of costs should have been deferred until the final judgment, and such would perhaps have been the better practice. The amount of costs to be awarded, and the manner in which they shall be paid, cannot, of course, be determined until the property is sold. Code Civ. Proc. § 1559. But, inasmuch as the plaintiff succeeded in her action, it was almost a matter of course to award her costs, and we cannot see how any one is prejudiced ' ■ by the fact that the interlocutory decree so declares. It does not pretend to adjudicate the right of any other party to costs, and consequently such right can easily be adjusted when application is made for final judgment. These views lead to the conclusion that the judgment appealed from should be affirmed. We are inclined to think, however, that, in view of the peculiar circumstances of the case, costs should be awarded to each of the parties.

Judgment affirmed, with costs of this appeal to each of the parties appearing thereon, to be paid out of the'proceeds of the sale, and without prejudice to the right of the defendants to apply for costs of the trial upon the coming in of the referee’s report of sale. All concur.  