
    Duffy v. Duffy et al.
    
    
      (Supreme Court, General Term, First Department.
    
    November 23, 1888.)
    Partition—Or Land Subject to Power or Sale—Action by Heir.
    Under Code Civil Proc. N. Y. § 1533, authorizing partition and sale between tenants in common, section 1533, prohibiting a sale where the co-owners are remainder-men or reversioners, and section 1537, providing that one alleging that he is a joint tenant, as heir, may maintain an action for partition, though there is an apparent devise to another, but that he must allege and prove in such action that the devise is void, an heir may maintain an action for sale in partition of lands, to sell which a power intrust has been vested in the widow, without any designation of the time within which it must be exercised; the power being no such devise as renders the prohibiting sections applicable.
    Appeal from special term, New York county.
    Action by Mary Duffy, heir at law of Philip Duffy, against Catherine Duffy his widow, Francis Duffy, Susan Daly, and others, heirs at law, for sale in partition of certain parcels of land of decedent. Sale ordered, and defendant Catherine Duffy appeals. Code Civil Proc. N. Y. § 1532, authorizes ah action for partition between tenants in common, and sale where partition cannot be made without prejudice. Section 1533 prohibits a sale in partition proceedings between co-owners of a remainder or reversion; and section 1537 provides that one alleging that he is a joint tenant as heir may maintain an action for partition, though there is an apparent devise to another, but that he must allege and prove in such action that the devise is void.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Delos McCurdy, for appellant. William Irwin, for respondent, Susan Daly.
   Daniels, J.

By the judgment which has been recovered, a sale in partition is directed of two parcels of land situated on Seventy-fourth street, between Second and Third avenues, in the city of New York. The larger parcel is 25 feet front and rear, by 102 feet 2 inches in depth. Each of these parcels of land was owned at the time of his decease by Philip Duffy, who left a will devising one undivided half of the larger piece of ground to his widow in lieu of dower. The will made no other disposition of any part of the property of the testator after the payment of his debts, funeral and testamentary charges; but the testator authorized his widow, Catherine Duffy, as executrix of the will, “to sell and dispose of said estate at public auction, and to convey the same, with full power to execute a good and sufflcient deed inlaw therefor. ” The plaintiff is one of the heirs at law of the testator; and, as no other part of his real estate has been devised than the undivided half given to the widow, she, together with the other heirs at law, became entitled by descent to the other undivided half of this piece of land, and also to the other parcel of land adjoining it on the east, and being only three feet front and rear, and of the same depth as that described and mentioned in the will. She brought her action for the partition of these two parcels of real estate as such heir at law, and it has been resisted by the widow, who is the only appellant, on the ground that she became vested with and entitled to execute this power of sale by the will of the testator. A dispute has arisen between the parties as to whether the power of sale includes the entire estate in the parcel of land in w'hich the widow has been given an undivided half, or both of these parcels of land; and it has been further objected to as an entirely illegal act on the part of the testator; and authorities have been cited in support of the latter position, but in those cases the court proceeded no further than to hold that the power was inoperative as to property otherwise and directly devised by the testator. Lovett v. Kingsland, 44 Barb. 560; Lovett v. Gillender, 35 N. Y. 617, 620; Hetzel v. Barber, 69 N. Y. 1. But there was no devise of the testator’s estate in this instance beyond that given to the widow; and, even though the power shall be held to be inoperative over that undivided half, the residue of the estate still descended to the heirs at law, being undevised by the testator, subject to her future execution of this power, provided it should be so construed as to include that part of the testator’s estate. Crittenden v. Fairchild, 41 N. Y. 289; Lent v. Howard, 89 N. Y. 176. It is not, however, necessary to determine whether these objections to the power are well taken or not, for the reason that if it should include the other undivided interest in the larger parcel of land, as it probably might, or that, together with the smaller parcel of land, it would not stand in the way of the • right of the plaintiff to maintain an action for the partition of the estate. While the power is a power in trust, no time has been fixed in the direction given to the testatrix within which it is to be exercised, but that has been left to her own volition, subject to the power of the court to compel its execution for the benefit of the parties interested in it. 2 Rev. St. (6th Ed.) p. 1115, § 117. Subject to this power, certainly the entire real estate not devised to the widow descended to the testator’s heirs at law. Lent v. Howard, 89 N. Y. 169, 176. And they thereby became tenants in common with the widow in the larger parcel of the testator’s real estate, and between themselves in the smaller of the two parcels. And when an estate in lands may be held in this manner, section 1532 of the Code of Civil Procedure has secured the right to either one of the tenants in common to prosecute and maintain an action for the partition of the estate. This right has been unqualifiedly given where the facts are that the parties are tenants in common, as they appear'to be in this action. The suit has not been prohibited by anything contained in the succeeding section relating to remainder-men, for this estate is held by the parties owning it in common in fee. Neither is the right to maintain the action dependent upon any devise of the testator’s estate being declared void, as that has been provided for by section 1537 of the Code of Civil Procedure. There was no other devise in this instance than that of the undivided interest to the widow, which was given to her in lieu of her dower, and the validity ■of which lias been neither assailed nor made the subject of objection. So far from anything contained in the Codeof Civil Procedure being in conflict with ■the right of the plaintiff to maintain this action because of the existence of ;this power, its provisions appear to be clearly in her favor, and in no way subject to qualification on account of the existence of this power; and that was ■ considered to be their effect in Thornton v. Stilwell, 4 N. Y. St. Rep. 859. 'The case of McGregor v. McGregor, 22 Wkly. Dig. 305, has been brought to ■ the attention of the court as an authority opposed to the right of the plaintiff to maintain this action, but that is not the effect of the decision made in that case; for there a valid trust had been created which was still in existence, .and consequently deprived the plaintiff of the right to maintain an action for •the partition of the estate. There was no such title existing in the plaintiff .there as the law has required to justify such an action. Yo question has been •presented as to the liability of the widow to account for the rents and profits, •.since the death of the testator, of so much of the real estate as was not devised to her by the will; and her liability for that accounting, not being resisted in support of the appeal, may be assumed by the court to have been rightly disposed of at the trial. The judgment which was directed, so far as it lias been brought in question, appears tobe right, and it should be affirmed, •with costs.

Van Brunt, P. J., and Brady, JJ., concur.  