
    Amelia Sohwencke, Respondent, v. Louisa Haffner, Appellant, Impleaded With Rosa Huss, Respondent, and Others, Defendants.
    
      Pa/rtition—a disinherited heir entitled to take in case of intestacy.
    
    Where a child is disinherited hy the will of its parent, but the share which it . might have taken in the parent’s estate is not otherwise devised, it is entitled to take in the event of intestacy and is consequently a necessary party to an action brought to partition land of which the testator died seized.
    Appeal by the defendant, Louisa Iiaffner, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the_ county of Kings on the 7th day of January, 1897, upon the decision of the court rendered after a trial at the Kings Special Term, adjudging that certain persons, not parties to the action, have no interest in the premises described in the complaint. The action was brought to partition, certain real' property.
    The will of Christopher Huss, mentioned in the complaint, is as follows:
    
      “ In the Name ob God, Amen :
    “ I, Christopher IIuss, of Green Point, city of Brooklyn, county of Kings and. State of New York, being of sound and disposing mind and memory, do publish, make and ordain this to be my. last Will and Testament in manner and form following :
    
      “First. I will that all my debts and funeral expenses be paid and discharged by the executors hereinafter named.
    
      “ Second. I give, devise and bequeath to my wife all my real and personal estate of whatever kind or nature, the interest and income thereof during her life, or as long as she shall remain single and unmarried.
    
      “ Third. I will upon the death of my wife, if she should die without having again married, that then my said real and personal estate shall be equally divided, share and share alike, between my wife’s children and my children then living or their heirs, excepting the child of my wife’s daughter Caroline, who shall retain the sum of live hundred dollars; the said sum shall be held in trust by my wife’s oldest surviving child until said child shall reach the age of twenty-one years.
    “ Fourth-. I will that my son Charles shall receive the sum of fifteen hundred dollars less than the other children, as that sum has been advanced to him and is a charge against his share of the said estate. I also disinherit my daughter Elizabeth, who shall not be entitled to anything whatsoever.
    
      “ Fifth. I will that upon the remarriage of my Avife that my estate shall then be equally divided, share and share alike, between my Avife and her children, or their heirs, and my children and their heirs, excepting as provided in the third and fourth paragraphs of this my last Will and Testament.
    
      “ And lastly I do make and constitute and appoint Caroline Huss (my wife) and Jacob Brenner, of Green Point, city of Brooklyn and county of Kings and State of New York, Executors of this my last Will and Testament.”
    
      Geo. H. Perry, for the appellant.
    
      Da/niel Cameron, for the plaintiff respondent.
    
      J. Homer Hildreth, for the defendant respondent.
   Per Curiam :

The true construction- of the will of Christopher Iiuss, the common ancestor of the parties, from whom they have obtained title to the premises sought to be partitioned, is riot free from doubt. The subject will stand much more discussion and- examination than the 'counsel have seen fit to bestow upon it,- possibly for the reason that the .point hereinafter suggested had not. been called to the attention of-the attorney. We do not think it necessary to determine fully, what construction should be placed upon the will,.in the absence of parties who maybe affected by our decision. We are entirely clear that in any aspect of the case there is a fatal defect of .parties, in-that Elizabeth Welch is .not a party to the action. ......;

It is true that there is a. clause of the will disinheriting' lieiybiut the share which she might have taken in her father’s estate is not otherwise devised, and in the remote but possible contingency of intestacy she would' be entitled to inherit. (Haxtun v. Corse, 2 Barb. Ch. 521.)

The devise, upon the death of the testator’s wife, is: That then my said real and personal estate shall be equally divided, share and share alike, between my wife’s children and my children-then living, or their heirs,” etc. It is not necessary now to decide, whether the provision, “ or their heirs,” should be construed as a gift of substitution to the issue of the children who' might die before-the;, .death of the wife. We tliink.it entirely clear that none of the children of' the testator and his wife could take under this*' devise unless living at the death of the wife. ■ .The .question is not whéther the remainder'is vested or contingent. ‘ Evén assuming it to be vested, the question is, whether it is subject to divest by the death of the remaindermen before that of the widow. The case of Patchen v. Patchen (121 N. Y. 432) is conclusive on the question that the term “ then,” used in this clause, refers to the death of the widow. The argument' that the widow by conveying, her life estate could change or alter the ' rights of the parties in the remainder upon her death, is plainly' untenable and needs no serious discussion. If at the death of. the widow none of the testator’s children and none of her own children be surviving, then, unless the devise to the heirs is substitutionary, as suggested, the devise would fail, and the remainder pass to the testator’s heirs at law. But if the gift to their heirs should be con strued as substitutionary, still all the. children might die before the widow without "leaving issue. Again, in that-case, the testator would die intestate and the remainder pass to his heirs at law. If we should construe the term “ heirs ” in its broadest sense and as not being confined to issue, in the case of the death of any of the testator’s children without issue, Elizabeth Welch would be one of the heirs at law of that child, provided Elizabeth survive the widow. We thus see that under any construction Elizabeth Welch has a contingent interest in the lands and must be made a party to the action.

As to the grandchildren', as already stated, we decline to now ■determine their rights. We, however, suggest to the parties whether it would not be wiser to bring such, grandchildren into the action that they may be concluded by any judgment rendered herein. Otherwise, it may well be that the purchaser on a sale under the judgment will not be compelled to take title; all the more that the ■courts uniformly hold that a purchaser at a judicial sale will not be compelled to take a doubtful title. (Toole v. Toole, 112 N. Y. 333.)

The judgment should be reversed and a new trial granted, costs to abide the final award of costs.

• All concurred.

Interlocutory judgment reversed and new trial granted, costs to abide the event.  