
    George B. Pattison, as Substituted Trustee of and under the Last Will and Testament of James W. Cusack, Deceased, Respondent, v. Kittie Akin Cusack, Individually and as Trustee of and under the Last Will and Testament of James W. Cusack, Deceased, Appellant, Impleaded with Ella F. Cusack, Respondent.
    Third Department,
    November 15, 1911.
    Will — devise in trust with contingent remainders over—partition — when trustee cannot maintain action — power of sale — consent of contingent remaindermen required.
    Where a testator devised an undivided two-thirds of his realty to trustees to pay the income to his daughter during her life and during the life of her mother, with a provision that upon the death of either of said persons the corpus should be paid over to-the survivor, - the trustees have legal title only during the lifetime of the one of the two persons named who shall die first, and there is a contingent remainder vesting immediately in possession of the one who survives the death of the other.
    A substituted trustee has no standing to maintain an action to partition said lands, not being one of the persons mentioned in section 1538 of the Code of Civil Procedure stating who may bring the action.
    Moreover, where the will empowered the executors and trustees to sell the lands only with the consent of the testator’s wife and daughter, a substituted trustee cannot sell directly, or indirectly through an action of . partition, where the widow objects to the sale.
    Appeal by the defendant, Kittie Akin Cusack, individually .and as trustee, etc., from part of an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the. clerk of the county of Eensselaer on the 3d day of January, 1911, upon the decision of the court, rendered after a trial before the court without a jury at the Eensselaer Trial Term, directing a sale in an action for partition.
    
      Shaw, Bailey & Murphy [H. D. Bailey of counsel], for the. appellant Cusack.
    
      Abbott H. Jones, for the appellant trustee.
    
      Peck & Behan [John H. Peck of counsel], for the plaintiff, respondent.
    
      John T. Norton, for the respondent Ella F. Cusack.
   Betts, J.:

James W. Cusack owned the premises involved in this action. He died testate on April 10, 1898. His will, so far as is important here, was as follows:

“Fifth. I give, devise and bequeath one-third of all the rest, residue and remainder of my property, both real and personal, to my beloved wife Kittie Akin Cusack absolutely, which shall be received and accepted by her in lieu of all dower which she may have in the real property of which I may die seized.

“ Sixth. I give, devise and bequeath all of the rest, residue and remainder of my property, both real and personal, to my executors hereinafter named in trust, however, to invest the same and pay over the income arising therefrom to my daughter Ella F. Cusack, during her lifetime and during the lifetime of my said wife, and in case my said wife shall not survive my said daughter, then, and immediately upon my said wife’s death, my said executors shall pay and turn over to my said daughter all of said rest and residue, together with the accumulations of interest then on hand; and in case my wife shall survive my said daughter, then, and immediately upon my said daughter’s death, my said executors shall pay and turn over to my said wife all the rest and residue of my said property, together with the accumulations of interest then on hand. * * *

“Eighth. I nominate, constitute and appoint my friends' John P. Townsend of New York City, N. Y., and Charles Oleminshaw of the City of Troy, N. Y., executors, and my, said wife Kittie Akin Cusack, executrix, of this my last will and testament, empowering them to sell any or all bf my real estate at such time or times as they shall deem it for the "best interests of my estate and with the consent of my said wife and daughter.”

The executor John P. Townsend died some time subsequent to. .assuming his duties, and Charles Cleminshaw resigned in 1909, and the plaintiff was appointed as a substituted trustee in place and stead of said Charles Cleminshaw and qualified and entered upon the discharge of his duties.

The heirs at law and next of kin of James W. Cusack were Kittie Akin Cusack, his widow and second wife, and Ella F. Cusack, a daughter by his first wife.

The court, has found in its findings of fact the rights, shares and interests of the parties- in the real property described in the complaint as follows:

“VI, The rights, shares and -interests of the plaintiff and the defendants in and to the real estate and property hereinbefore described and described in the complaint in this action are as follows, to wit:

“ The said defendant, Kittie Akin Cusack, individually is seized in fee and entitled of and to an undivided one-third part of said real estate.

“ The plaintiff and the defendant,. Kittie Akin Cusack, as trustees as aforesaid, are seized of and vested with the. legal estate, subject to the execution of the trust created in and by the last will and testament of James W. Cusack, deceased, of, in and to an undivided two-thirds part of said real estate. ”

And as conclusions of law:

“1. The plaintiff and the defendant, Kittie Akin Cusack, as trustees of and under, the last will and testament of James W. Cusack, deceased, are seized, vested with and in possession of all the real estate devised in trust to the trustees named in said last will and testament.

“ The defendant, Kittie Akin Cusack, individually is seized in fee simple absolute and in possession of the undivided one-third of the said real estate.

“The plaintiff and the defendant, Kittie Akin Cusack, as trustees of and under the last will and testament of James W. Cusack, deceased, are seized of and vested with the legal estate, subject to the execution of the trust created in and by said last will and testament, of, in and to an undivided two-thirds part of the real estate of which the testator died seized and are in possession thereof.”

The judgment appealed from follows these findings. Thus, the judgment proceeds on the theory that Ella F. Cusack has no interest whatever in this real estate.

It is difficult to understand how the shares and interests of the parties to the action can thus be found from the will under which all parties claim and derive their title as to the undivided two-thirds, thereof, or how in any event this action can be maintained by this plaintiff. It would seem plain enough that as to the undivided two-thirds, Kittie Akin Cusack and plaintiff as trustees had a life estate in the said undivided two-thirds thereof which would continue only during the lifetime of the shortest liver of Kittie Akin Cusack or Ella F. Cusack, and that Kittie Akin Cusack and Ella F. Cusack had a contingent remainder therein which would immediately vest in possession in the survivor on the death of the shortest liver of them. (Matter of Cramer, 170 N. Y. 271, and cases cited; Freeborn v. Wagner, 2 Abb. Ct. App. Dec. 175; Real Prop. Law [Gen. Laws, chap. 46; Laws of 1896, chap. 547], § 30, now Real Prop. Law, § 40.) Nor could Ella F. Cusack maintain partition. (Garvey v. Union Trust Co., 29 App. Div. 513.) Immediately upon the death of Kittie Akin Cusack or Ella F. Cusack the absolute title to the undivided two-thirds interest goes to the survivor of them by the plain terms of the will.

The Code of Civil Procedure prescribes who may maintain an action of partition. (§§ 1532, 1533 et seq.) The plaintiff does not answer to the description of any person or interest therein described. Section 1538 prescribes who may be plaintiff in an action of partition. This plaintiff and his interest do not come within the provisions of that section.

James W. Cusack desired to and did leave his property to his wife and daughter, and did this, by giving one-third absolutely to his wife in lieu of her dower, and then so provided that the remainder of his real estate could be sold by. his trustees only upon his wife and daughter consenting to such sale. The widow has not consented to, but is protesting and objecting against such sale.

By this action a trustee who has been substituted by the court for one of those selected by the testator, and in opposition to the testator’s wife, is seeking to and has accomplished thus far by the forms of law in doing that which-the will directly forbids being done.

The plaintiff has no interest that he can alienate acting alone and he cannot in my opinion indirectly do that, through an action of partition, which he could not do otherwise.

The result if this action should be continued would be to place a large expense upon -the estate which would seem to be unwarranted. No sufficient reason is shown therefor. If the trustees cannot agree in the management of the estate this is not the proper action to establish that fact in or to seek redress for such disagreement.

I think that the case should be reversed upon the law and the facts and a new trial granted, with one bill of costs to the defendant Kittie Akin Cusack, individually and as trustee, against the plaintiff Pattison personally to abide the event of the action.

All concurred.

Judgment reversed on law and facts and new trial- granted, with one bill of costs [to Kittie Akin Cusack, individually and as trustee, against the plaintiff Pattison® personally to abide the event.  