
    Michael Lang, App'lt, v. John Everling, Resp't.
    
      (New York Common Pleas, General Term,
    
    
      Filed May 8, 1893.)
    
    
      1. Winn—Construction.
    A testator, by his will, gave all his estate to his wife to be held and enjoyed by her during her natural life, if she should so long continue his widow, upon condition that she should out of the income maintain and educate the children during minority, and declared that such provision was in lieu of dower. Meld, that no trust was created, but that a life estate was devised to the widow charged only with the maintenance and education of the children, which was determinable upon her remarriage, and was capable of alienation subject to such charge.
    3. Mechanic’s lien—Owner.
    The widow was an owner within the mechanic’s lien law, upon whose interest a valid lien could be obtained for alterations or improvements, and upon foreclosure the widow’s life estate, subject to the charge, is effectually transferred to the purchaser at the sale.
    3. Same—Summary proceedings.
    The purchaser at such sale becomes entitled to all future accruing rent of the premises, and as between him and a lessee of them the conventional relation of landlord and tenant is created by his conveyance, and he may maintain summary proceedings in case of non-payment.
    Appeal from a judgment of the district court in the city of New York for the fourth judicial district, dismissing summary proceedings to recover the possession of land, instituted bv the lessor’s successor in interest against the tenant upon the ground that the latter continued in possession after default in the payment of rent. Code of Civil Procedure, §§ 2231, etc.
    
      Bartlett, Wilson & Hayden, for app’lt; John Fennell, for resp’t,
   Bischoff, J.

The premises of which appellant sought to recover possession by means of the summary proceedings which were instituted by him are part of the estate of which Jules Weil died seized. He left a last will and testament, which was duly admitted to probate by the surrogate for the county of New York, and provided as follows : “ 2d. I give, devise and bequeath unto my beloved wife, Jeanette Weil, all my estate, real and personal and mixed, and of every name and nature, and wheresoever the same may be at the time of my death, to be held and enjoyed by her, together with the rents, issues, income, interest, gains and profits thereof, for and during the term of her natural life, if she shall so long continue my widow, upon the express condition, however, that she shall out of such income maintain and educate my children during their minority. * * * 4th. The provision's hereinbefore made for, and the devises and bequests to my said wife subject to the maintenance and education of my children during their minority as aforesaid, are only made and given upon condition that she accept the same in lieu of all dower or thirds in my estate.” It does not appear that the widow entered upon any lands which were assigned to her for dower, or .that she commenced to' recover her dower or for the thereof, within one year after the testator’s death, and under the provisions of the Revised Statutes of this state, R. S., vol. Ill, p. 2198, § 14, Banks & Bros., 7th ed., she must be deemed, to have elected to accept the testamentary provisions for her benefit in lieu of dower.

Some time after the testator’s death Michael Lang, the appellant, obtained a lien pursuant to the provisions of the mechanic's lien law, Laws 1885, chap. 342, upon the widow’s interest in the real property devised to her, for services performed and materials furnished in and about certain improvements and repairs. This lien was appropriately foreclosed by action in this court and the widow’s interest decreed to be sold. At the.sale Lang became the purchaser and by the referee’s deed, which is dated December 13, 1892, her interest was conveyed to him.

Thereupon Lang demanded payment of the month’s rent which became due and payable in advance on the 1st day of February, 1893, from John Everling, who was conceded to be the tenant and lessee in possession under a lease from the widow, and upon his refusal to pay proceedings to dispossess him were instituted by Lang on the ground that he continued in possession after default in the payment of rent without the landlord’s permission. Code Civ. Pro., § 2231, subd. 2. On the trial it was contended for the tenant that the widow’s estate under the will of Jules Weil was that of a trustee to receive the rents, issues and profits and to apply them towards the maintenance and education of the testator’s children during their respective minorities; that Lang did ■not obtain a valid lien upon the trust estate, because such an estate is incapable of sale; and that he did not for the same reason acquire any interest in the premises by means of the foreclosure sale and the referee’s deed to him, and so was not entitled to maintain proceedings to recover possession.

Could we agree to the trial justice’s construction of the will of Jules Weil, the judgment appealed from would require our affirmance. A trust estate is inalienable by express provision of law when the trust is expressed in the instrument which creates the estate. R. S., vol. Ill, p. 2183, § 65, Banks & Bros.’ 7th ed., Powers v. Bergen, 6 N. Y., 360; Leonard v. Burr, 18 id., 107; Briggs v. Davis, 20 id., 21; Fitzgerald v. Topping, 48 id., 444; Douglas v. Cruger, 80 id., 15. Neither a creditor of the trustee personally, nor one of him'in his representative capacity, can acquire by means of the assertion of a lien any rights respecting the trust estate which the trustee did not have, and it follows that if the widow, as devisee of Jules Weil, obtained only a life estate in trust for the testator’s children, that a pretended lien and a sale in proceedings to foreclose it are ineffectual to transfer the estate to the purchaser.

But we are of the opinion that the will devised a life estate to the "widow, charged only with the maintenance and education of the testator’s children, which was determinable upon her remarriage, and that after providing for the maintenance and support of the children, the remainder of the rents, issues and profits enured to the benefit of the devisee of the life estate. That such was the testator’s intention we think clearly appears from the language of the will; but if there is any ambiguity therein, it is dispelled by the fact that the widow is required to elect between her right of dower and acceptance of the devise and bequest to her. Such an election may be imposed only when the testamentary provisions confer some benefit to the widow, R S., Yol. Ill, p. 2198, § 13, Banks & Bros.’ 7th ed., and that the testator required his widow to elect between her dower and the provisions of the will manifests an intention to devise to her something more than a nominal estate.

A “ charge ” upon land by will is distinguished from a “ trust ” of the land, in that in the case of the former the land is devised generally for the beneficial enjoyment of the devisee, subject, however, to the payment by him of a specific sum, or specific sums, of money, or the performance of a particular duty, while in the case of a “ trust ” the devise is limited to some particular purpose with no beneficial interest in the devisee. Am. & Eng. Ency. of Law, vol. 13, p. 109, note; King v. Denison, 1 V. & B. (Eng.), 260, 272; Wood v. Cox, 2 Myl. & Cr. (Eng.), 684; Tregonwell v. Sydenham, 3 Dow (Eng.), 194, 210.

It will be observed that the will under consideration devises to the testator’s widow the income of all his estate generally, with no directions respecting its application, except that out of it she is to maintain and educate his children. This, under the definitions given above, excludes a “trust”'and implies a “charge.” See, also, Dill v. Wisner, 88 N. Y., 153.

The life estate devised to the widow was capable of alienation by her in the absence of a condition restraining it, subject, of course, to the charge imposed thereon by the terms of the will. Am. & Eng. Ency. of Law, vol. 16, p., 881; Jackson v. Van Hoesen, 4 Cow., 325. She was an “owner” within the mechanic’s lien law, Laws 1885, ch. 342, upon whose interest a valid lien could be obtained for services performed and materials furnished in erecting, altering or repairing any house, etc., with his consent, to the extent of such owner’s interest, whether it be that of a fee or of a less estate, and upon the foreclosure of the lien the widow’s life estate, subject to the “ charge,” was effectually transferred from her to the purchaser at the foreclosure sale.

The conveyance of the widow’s estate to Lang, as purchaser at the foreclosure sale, was without any reservation respecting rent, and he therefore became entitled, as owner of the lessor's reversion, to all future accruing rent. Demarest v. Willard, 8 Cow., 206; Whiling v. Street, Anthon’s N. P., 276; Jackson v. Bull, 1 Johns. Cas., 81; Jackson v. Raymond, 1 id., 85, note; (rear’s Law of Landlord & Tenant, § 130. As between him and the.lessee the conventional relation of landlord and tenant-was created by the conveyance, Birdsall v. Phillips, 17 Wend., 464, 473. ISTo attornment was necessary, R. S., vol. III. p. 2195, § 146, Banks & Bros., 7th ed.; Am. & Eng. Enc. of Law, vol. 12, p. 664; Morris v. Niles, 12 Abb. Pr. 103, and the purchaser became entitled to all the remedies for non-performance of the covenants and conditions on the part of the lessee to be performed as the lessor might have maintained bad the reversion remained in him. R. S., vol. III., p. 2203, §23, Banks & Bros. 7th ed.

Neither can it he successfully disputed that the grantee of the lessor’s reversionary estate, whether he became such by voluntary conveyance or judicial sale, is entitled to maintain proceedings to recover possession of the premises, upon the tenant’s or lessee’s default in the payment of rent, under the provisions of §§ 2231, etc., of the Code of Civil Procedure. The term “ landlord,” as used in § 2231, is not restricted to designate the lessor only,, but includes the grantee of the latter’s estate. That this is so appears from subd. 2 of the section last referred to, by which it is required that a previous demand of payment of the rent shall be made, not in behalf of the lessor, but “ in behalf of the person entitled ” thereto ; and from § 2235, which prescribes that application for the removal of the tenant may be made by the landlord or lessor, or by the legal representative, agent or assignee of the-landlord.

Our conclusion from the foregoing is that the trial justice-erred in dismissing the proceedings, and that the judgment appealed from should be reversed and a new trial ordered, with costs to the prevailing party to abide the event.

Judgment reversed and new trial ordered, with costs to the prevailing party to abide the event.

Bookstaver, J., concurs.  