
    Catherine F. Havey, Respondent, v. Honorah Kelleher, Individually and as Administratrix, etc., of Michael Kelleher, Deceased, Appellant, Impleaded with Others.
    
      Pa/riition suit by an heir — accounting for rents, etc., by the widow and administratrix of an intestate in possession —premiums of insurance on policies taken in her name—claims and judgments against the estate paid by her— cost of improvements made on the premises — right to maintain partition— Code of Civil Procedure, sections 1532,1533 — consent of life tenant— objection first taken on appeal.
    
    An intestate who died seized of certain real estate left surviving him five children and his widow who was appointed administratrix of his estate. After four of the children had died intestate and without issue, and their interests in their father’s real estate had descended to the widow for life, with remainder to the surviving child, the latter brought an action against the widow individually and as administratrix, to partition the premises, and asked- that the widow, who, since the death of her husband, had managed the .real estate as her own, be required to account for the rents and profits. The action was referred to a referee who stated the account and reported in favor of a sale of the premises instead of an actual partition.
    On an appeal from the judgment entered upon his report it. was
    
      Held, that the defendant was not entitled to be allowed for moneys paid to procure policies of insurance upon the premises, "such policies having been taken out in the name of the defendant alone, and being invalid because the defendant was not the sole owner of the premises insured;
    That claims and judgments against the estate of the intestate which the defendant had paid were not a charge against the plaintiff, and could not be allowed to the defendant in the present action, although they might have formed a proper subject of allowance in an accounting by the defendant as administratrix in the Surrogate’s Court;
    
      That the defendant was not entitled to be allowed the value of new buildings and additions which she had placed upon the premises, it appearing that such structures were paid for out of the rents of the premises, and that the defend- ’ ant, with knowledge of the limited nature of her title, erected the buildings as a business venture without the consent of the plaintiff;
    That as the plaintiff and the defendant were not j oint tenants or tenants in common of a “ vested remainder or reversion,” section 1533 of the Code of Civil Procedure, providing that in such a case “ no sale of the premises in such an action shall be made except by and with the consent ” of the person holding the “par ticular estate,” did'not apply; that the plaintiff’s right to maintain the action was governed by section 1532 of that Code, which permits any one of two or more of several tenants in common of real estate to maintain ah action to partition it.
    
      Semble, that the objection that in an action of partition, the consent of the life tenant must be obtained before a sale of the premises can be directed, cannot be raised for the first time upon appeal.
    Appeal by the defendant, Honorah Kelleher, individually and as administratrix, etc.,' of Michael Kelleher, deceased, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 2d day of October, 1897, as amended by an order entered in said clerk’s office on the 13th day of ¡November, 1897, upon the report of a referee.
    
      Joseph F. Daby, for the appellant.
    
      John J. Crennan, for the respondent.*
   Goodrich, P. J.:

Michael Kelleher died intestate in February, 1869, leaving him surviving his widow, the defendant, and five children, one of whom is the plaintiff. The other four children, since the father’s death, ' died intestate and without issue. These were Bartholomew, who died in March, 1892;. Michael, who died in July, 1879 ; James, who died in August, 1881, and Sarah, who died in 1869.

At the time of his death Michael, the elder, was seized of two adjoining lots on the southwesterly side of Mechanic street, in the village of ¡New Rochelle, each about one hundred and thirteen by thirty feet. The premises were conveyed to him by L. P. Miller, the southerly one in April,'1864, for $500, and the northerly one in July, 1865, for $550; and of these premises the plaintiff seeks partition.

When Kelleher died the only building on the premises was a frame house on the southerly lot and a small frame barn which was subsequently burned down. This lot was subject to a mortgage of $1,000, executed by Michael and his wife to John Morris, and by assignment transferred to the defendant in 1890. The northerly lot was subject to a mortgage of $550, executed by the same parties to Leonard P. Miller. This was satisfied of record in 1881.

From the death of Michael, in 1869, down to 1875, and again from 1881 to 1892, the widow occupied the frame dwelling on the southerly lot as a family home. The plaintiff lived with her until 1886, when she married.

In 1876 the defendant erected a brick dwelling on the front of the northerly lot, and in 1892 a hall on the rear of the two lots, and in 1892, also, a small barn on the southerly lot in place of the one which had been burned. Previously to the time of his death Michael had been conducting the liquor business in the frame dwelling, and this business was continued by the widow.

The widow applied for letters of administration, and the petition stated that the personal estate amounted to $100 and the real estate to $2,000. Since the death of her husband she has collected the rents and income and paid for the new buildings and the taxes, assessments and other charges.

The plaintiff came of age in 1878. The brick dwelling on the northerly lot was erected during her minority, and the others since her majority. This action is brought for partition of the premises, and the plaintiff asks an accounting between herself and the defendant.

The defendant in her answer alleged that the lots in'question, although conveyed to her husband, were paid for with her own money, and that in the belief that she was a joint owner with her husband and after his death sole surviving owner, and in ignorance of the fact that the property had been conveyed to her husband, she built and paid for the brick house, the hall and the stable, with the knowledge and consent of the plaintiff and the other children, and satisfied liens and charges thereon, all of which expenditures amounted to $18,000, and also paid claims against the husband’s estate amounting to $3,000; and that she had conveyed to the plaintiff, without consideration, improved real estate on Church street valued at $2,900, and advanced to her $3,500. Of all of these transactions she prayed an accounting.

An order was entered directing a reference to hear and determine all the issues, and to take proof of title and to report as to the propriety of actual partition or sale of the entire premises.

It was alleged in the complaint, admitted in the answer and found by the referee, that the plaintiff is seized in fee simple absolute of the entire premises, subject, to the defendant’s right of doWer and also to her life, estate in four undivided fifths, which had descended to the four deceased children. The general theory upon which the referee based his report was that the defendant was quasi agent of the estate and as such was to be charged with all the rents or income which she had collected, the amount of which was stipulated between the parties, and to be credited with all payments which were properly a charge against the estate.

He also found as matter of fact that the erection of the new buildings “ was in the nature of a business venture made by the defendant Honorah Iielleher, without the consent of the plaintiff.”

That the defendant had collected rents amounting to... $9,290 00

That, she had paid taxes amounting to..;... $1,367 67

The principal and interest of the Hiller mortgage ................................ 952 32

The principal and interest of the Horris mortgage ............... 2,306 32

The principal andinterest of the Havey mortgage ........................, 2,173 00

Repairs .;.............................• 2,008 41

Insurance............................ 32 10

-—--- 8,839 82

Leaving her indebted to the estate of her husband for.. $450 18

The referee also reported in favor of selling the premises instead of partitioning them,.

The exceptions of the defendant to the .referee’s report raise questions- which can be more readily understood by an approximate tabulation of her claim, to be compared with the referee’s report.

Amount of rents received...........i............ $9,290 00

By taxes paid............... $1,367 67

The Miller mortgage and interest....... 1,019 38

The Morris mortgage and interest....... 2,818 33

The interest on Havey mortgage........ 422 75

Insurance........................... 971 90

Repairs............................... 2,620 74

Claims and judgments against the estate,

paid by defendant.................. 3,930 20

Value of new buildings erected and additions ................................ 6,604 00

Counterclaim for moneys advanced to the

plaintiff........................... 4,326 00

-- 22,080 97

Balance due the defendant...................' $12,790 97

Taking these questions in order, we proceed to discuss them.

The Miller mortgage: This was a lien on the premises at the time of Michael’s death. It was paid off with part of the proceeds of the Havey mortgage, which was given by the widow and children in 1881. The referee allowed her interest down to the date of this payment.

The Morris mortgage: This also was a lien at the time of Michael’s death. It was paid off in November, 1890, and interest was allowed by the referee to that date. The defendant, however,, took an assignment of - the mortgage to herself. This was clearly improper, as the mortgage was actually paid out of moneys belonging to the estate and should have been satisfied of record, instead of being assigned to the defendant.

The Hmey mortgage: This was executed in 1881, to raise money to pay off the Morris mortgage and to provide funds for the erection of the brick building on the northerly lot. It was paid off in 1885,- and interest allowed to that date.

The inswrcmce premiums: Although they were paid by the defendant, a large part of them was not allowed by the referee for the reason that the policies were taken out in the name of the defendant and technically insured her interest alone, instead of insuring the interest of herself and the children. It is evident that as the-defendant was not-the owner- of- the premises the insurance was not valid and was not an indemnity to -the owners, for whom she -was,-assuming to act as agent. ■ (Ford v. Knapp, 102 N. Y. 135.) Consequently, the referee - was right in refusing to credit her with premiums on any of such policies-.

liepairs: These seem to -have been paid out -of the rents, and, so far as chargeable to -the estate, are actually credited to the defendant by the referee. ■

Claims cmd judgments agalmstthe estate: These are not a charge upon or against the plaintiff and cannot be allowed, although they might, have- formed a proper subject of allowance in an accounting of the deféndant, as administratrix, before the surrogate.

The value of the nevj buildings a/nd additions: As the entire expense of the structures was paid out of the rents’of the estate, on property belonging to. the estate, it is somewhat difficult to predicate any right or claim of the defendant therefor. Besides, the referee' has found that “ there did not exist in the mind of the defendant, Honorah Kelleher,. the belief that the premises belonged to her, and she well knew her husband, Michael Kelleher, died seized of' the property,” and, as already stated, that she erected the buildings as a business venture and without the consent of the plaintiff.

In Scott v. Guernsey (48 N. Y. 106), which was an action for partition, certain buildings had been erected, during the life estate' of the tenant, with full knowledge of the limited nature of her title; the consent of the other parties in interest was not asked, and they were not invited to contribute or join in the enterprise. The court (held that the buildings were erected as a venture which it was hoped would return the investment with a profit; that the tenant was not entitled to reimbursement for the buildings erected by him, and that when the life tenant died the property as it stood, with the buildings thereon, belonged to the heirs. • .

The same principle was declared in Cosgriff v. Foss (152 N. Y. 104, 108), where the court held that At common law a tenant in common, who has made' permanent improvements, as distinguished from ordinary repairs, upon the common property, cannot recover from his co-tenant any part of his expenditures for that purpose, unless they were made at the request or with the consent, express- or implied, of the latter.” ■ •

Moneys advanced to the plaintiff: On the evidence we are of opinion that the sums were not advanced to the plaintiff as a part of her share or as other than gifts to her. At any rate, we do not see how such a question can be litigated in this action.

The defendant also contends that she is entitled to credit for one-third of the income from the property as dower widow, and to four-fifths of the remainder of the income as life tenant in the shares of the deceased children, subject to the payment of her just proportion of the expenses and debts. The judgment .provides for the payment to her from the proceeds of the sale, at her election, of a gross sum in satisfaction of her dower and estate, to be fixed by the referee, or one-third of the net proceeds, as her dower, and four-fifths of the remainder, as her life estate.

The defendant, on the argument of the appeal, but not at the trial or in the pleadings, contended that as the premises in suit cannot be partitioned without great prejudice to the parties interested, and as the life tenant does not consent to a sale, the referee should have dismissed the complaint,” in accordance with the finding of the refereej that the plaintiff is seized in fee simple in the premises, subject to the defendant’s right of dower therein, and also to her life estate in four undivided fifths thereof. This contention is based upon section 1533 of the Code of Civil Procedure, which provides that where two or more persons hold as joint tenants, or as tenants in common, a vested remainder or reversion, an ’ action for partition of the real property to which it attaches may he maintained by any one or more of them, subject to the interest of the person holding the particular estate therein; “■ but no sale of the premises in such an action shall be made, except by and with the consent in writing, to be acknowledged or proved and certified in like manner as a deed to be recorded, by the person or persons owning and holding such particular estate or estates.”

The fundamental error of this contention is that the parties do not hold as joint tenants or as tenants in common a “ vested remainder or reversion.” The plaintiff and defendant are tenants in common of the premises. The former is the owner of one undivided fifth of the premises, subject to the defendant’s dower right in the premises, and also to her life estate in four undivided fifths of the same. At the termination of her estate the undivided four-fifths will descend to the plaintiff, as heir of her deceased brothers and sisters. ■ Both plaintiff and defendant hold, therefore, as tenants in common, and ; in such case the rights of the parties to maintain this action are governed, not by section 1533, but by section 1532 of the Code of Civil Procedure, which permits any one or more, of several tenants in common, to maintain an action for partition. This section reads • as follows:

“ Where two or more persons hold and are in possession of real property, as joint tenants or as tenants in common, in which either of them has an estate of inheritance, or for life, or for years,, any one or more of them may maintain an action for the partition of the property, according to the respective rights of the persons interested therein; and for a sale thereof, if it appears that a partition thereof cannot be made, without great prejudice to the owners.”

. Besides, as the defendant admitted the allegation of the complaint, ' as to the titles and rights, of the respective parties, and the referee reported in accordance therewith, and there is no • exception to this finding and the question is raised for the first time pn this appeal, ; there is presented to this court no question for review upon that subject, but only the question of the jurisdiction' of the court to entertain the proceedings. (Howell v. Mills, 56 N. Y. 226.)

We find no errors, at the trial, and the judgment must be affirmed, . with costs.

All concurred.

Interlocutory judgment affirmed, with costs to. respondent, pay- ■ able out of the proceeds of sale;  