
    Julia L. Dwight, Respondent, v. Samuel R. Lawrence and Others, Appellants, Impleaded with Lawrence M. Lawson and Others, Defendants.
    
      Partition suit—the construction of a will must be adjudged therein where such adjudication is necessary to determine the rights of the parties.
    
    Henry Lawrence died in 1879, seized of certain real estate in fee and also of a leasehold, leaving a will hy which he devised one-fourth of the premises to each of the following persons: Julia L. Dwight, Samuel R. Lawrence, Edgar V. Lawrence and Laura Lawson. Laura Lawson died leaving a will, under which, if valid, the title to her share of the premises vested in the executor of and trustee under such will, Lawrence M. Lawson, Katharine L. Neumann and Katharine R. Neumann, an infant, while, if it was invalid, such title vested in her two children, Lawrence M. Lawson and Katharine L. Neumann, as her heirs at law.
    Subsequent to the death of said Laura Lawson, Julia L. Dwight brought an action to partition the premises. The Lawrences, who were defendants in that action, interposed an answer admitting the plaintiff's ownership of a one-fourth interest, and asked that the leasehold premises sought to be partitioned be set off to them as their share of the property. The infant defendant, Katharine R. Neumann, answered by her guardian ad litem, submitting her interest to the court. The other defendants failed to answer. The usual order of reference to take proof of title was made and such referee submitted a report in which he reported that the plaintiff and the defendants Lawrence were each entitled to an undivided one-fourth interest. He refused, however, to determine the ownership of the one-fourth interest of the premises passing under the will of Laura Lawson, saying, “it is impossible to determine at this time without a construction of the will of the said Laura Lawson first had and obtained what is the precise nature or extent of the respective interests of the defendants,” and recommending that the proceeds of the sale of the said one-fourth share be paid into court to await a judicial construction of the will of Laura Lawson.
    Upon an appeal by the defendants Lawrence and by the guardian ad litem, from the judgment entered in conformity with the referee’s report, it was
    
      Meld, that the infant defendant was absolutely entitled to have presently determined the question whether or not she had any interest in the property partitioned, and that the case should be sent back to the referee for such a determination.
    
      Semble, that the defendants Lawrence were also entitled to have such question presently determined in order that their right to have the leasehold premises set off to them in accordance with the prayer of their answer might be presented to the court.
    Appeal by the defendants, Samuel R. Lawrence and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of May, 1904, upon the report of a referee, directing a partition and sale of certain real property.
    
      W. S. Opdyke, for the appellants Samuel R. Lawrence and others.
    
      W. H. Van Steenbergh, guardian ad litem, for the appellant Katherine R. Neumann.
    
      De Lagnel Berier, for the respondent.
   Ingraham, J. :

This action was to partition certain real property consisting of premises owned in fee and a leasehold, of which it is alleged the plaintiff was the owner of an undivided fourth; the defendant Samuel R. Lawrence was the owner of an undivided fourth; the defendant Edgar Y. Lawrence the owner of an undivided fourth, and the remaining one-fourth was owned by one Laura Lawson, deceased, and is now vested in the defendant Gaines Lawson, as trustee, under her last will and testament, or in the other defendants, as her devisees or heirs at law. The plaintiff demands judgment for a partition of the said property, or in case said property cannot be actually partitioned, that the same be sold and the proceeds distributed. The defendants Lawrence interposed an answer admitting the ownership of the plaintiff, and asked that the leasehold premises sought to be partitioned be set off to these defendants as their share of the property partitioned, stating that they are willing to receive or to pay any compensation necessary for equality of partition. The infant defendant answered by her guardian ad Utem¡ submitting her interest to the court, and the other defendants failed to answer.

The plaintiff then made a motion for a reference to take proof of the title- and interests of the several parties, which motion was granted without objection. An order of reference was entered “to take proof of the title and interests of the several parties herein in and to the premises and leasehold mentioned in the amended complaint; and of the allegations of said amended complaint, and to ascertain and report what share or part of said premises and leasehold belongs to each of the parties hereto, so far as the same can be ascertained, and the nature and extent of their respective rights and interests therein,” with the other usual provisions required by the Code of Civil Procedure and the General Rules of Practice.

The parties thereupon proceeded before the referee, who reported that the premises were vested in one Henry Lawrence who died in the city of New York on the 25th day of January, 1879, leaving a last will and testament which was duly admitted to probate; that by the said will one-fourth of the premises was devised and bequeathed to the plaintiff, one-fourth to each of the defendants Lawrence, and one-fourth to Laura Lawson, a niece of the testator; that said Laura Lawson died on or about the 22d of March, 1894, leaving a last will and testament which was duly admitted to probate, the referee setting forth the will in his report. He further reported that the plaintiff and the defendants Samuel R. Lawrence and Edgar Y. Lawrence were each entitled to an undivided one-fourth of the property, that the defendants Gaines Lawrence, as executor under the last will and testament of Laura Lawson, deceased, Lawrence M. Lawson, Katherine L. Neumann and Katherine R. Neumann (who is the only child of Katherine L. Neumann) have among themselves, in accordance with the provisions of the will of the said Laura Lawson, deceased, provided the said will be valid, or in the event that it should be invalid, then the defendants Lawrence M. Lawson and Katherine L. Neumann, as the sole children and heirs of Laura Lawson, deceased, have among themselves the title to the remaining undivided one-fourth of the property ; that “ it is impossible to determine at this time without a construction of the will of the said Laura Lawson first had and obtained what is the precise nature or extent of the respective interests of the defendants ” named; and that so far as the rights and interests of these defendants are concerned, the undivided one-fourth share of the premises 24 Albany street, and the undivided one-fourth share of the leasehold of 339 West 18th street and 340 West 19th street be set apart, and that if there be a sale had as hereinafter recommended, the net proceeds of the said one-fourth share in both parcels be brought and paid into court there to be held until the court shall determine whether by construction of the will of Laura Lawson, deceased, or otherwise, to whom and in what proportion the said proceeds shall be divided according to law.” To this report the defendants Lawrence and the guardian ad lAtern for the infant defendant filed exceptions. Whereupon the plaintiff applied to the court for an interlocutory judgment, and the court, overruling the exceptions, directed that an interlocutory judgment be entered in conformity with the report of the referee, and from this interlocutory judgment the defendants Lawrence and the guardian acl litem appeal-The order of reference directed the referee to take proof of the title and interests of the several parties to the action in and to the premises and leasehold mentioned in the amended complaint, and to ascertain and report what share or part of said premises and leasehold belongs to each of the parties to the action, so far as the same can be ascertained, and the nature and extent of their respective rights and interests therein. Thus, it became the duty of the referee to construe the will and to determine the rights and interests of the several parties in and to the property in question. Neither the executor nor devisee or next of kin of Laura Lawson appeared in the action, but I think the other parties who were interested in the property had a right to have it determined to whom the property belonged; and then had a right to present to the court the question as to whether there could be an actual partition of the property, so as to award to the defendants Lawrence, in accordance with their demand, the leasehold premises in which they were interested. But whether the defendants Lawrence had this right or not, certainly the infant defendant who was before the court had the right to insist that it should be ascertained whether or not the infant had an interest in the property, so that her rights could be protected at the sale, if one was directed. The mere fact that the construction of the will presented difficulties was no reason for the refusal of the referee to determine the question submitted to him. This question has to be determined at some time. In view of the question presented as to the will, it is somewhat surprising that the parties immediately in interest have not appeared in the action. But the question is now before the court, and there is no reason why the will cannot be as well construed at the present time as at any other. The infant defendant was absolutely entitled to have the question, whether or not she has any interest in this property, now determined; and as she filed exceptions to the report and appealed from the interlocutory judgment, she is entitled to have that question determined before the sale of the property.

It follows that the interlocutory judgment must be reversed, and the case referred back to the referee to report as to which of the defendants is entitled to the one-fourth interest that had vested in Laura Lawson, deceased, the costs of this appeal to the guardian ad litem and the defendants Lawrence to be paid out of the proceeds of the sale.

Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ., concurred.

Judgment reversed and case sent back to referee as directed in opinion, with costs of appeal to guardian ad litem and to defendants Lawrence to be paid out of proceeds of sale.  