
    William F. Wilson, App’lt, v. Charles White, Resp’t.
    
    
      (Court of Appeals.
    
    
      Filed March 20, 1888.)
    
    1 Will—Construction of—Sale of real estate to pay debts of testator—Necessary parties
    The testator died seized of real estate leaving a will by which such land: was devised as follows: "I do give and bequeath to my son, Henry J. Yeomans, the use of my farm, during the term of his natural life, and at his decease to be equally divided among his children, should he leave any, but should there be no issue or descendants him surviving, then to be equally divided among my brothers and sisters’ children or issue.” Proceedings were taken by the executors to sell such real estate to pay the debts of the testator, and at that time Henry J. Yeomans was, and still is, living, also his four children, being each of the age of five years or under. A number of children of the brothers and sisters of testator were also living and were not cited upon the hearing of the application before the surrogate and took no part therein. Held, that a sale ordered under such circumstances would not cut off the rights of persons not cited thereto.
    Same—Contingent bemaindeemen—Rights op.
    The clause of the will constituted a valid'disposition of the property in question and gave a life estate to the testator’s son, H. J. Y., with remainder over to his children or their issue, if he left any, but in case there were none, to the children of his brothers and sisters. Upon the death of the testator the first limitation vested a remainder in fee in the children of H. J., and the second limitation constituted a good contingent remainder. The rights of the contingent remaindermen constituted an estate in lands of which they could not be divested during the existence of the life estate, except by appropriate legal proceedings to which they should be made-parties. Citing Baker v. Lorilla/rd, 4 N. Y., 257.
    3. Same—Suspension op foweb op alienation.
    There was no improper suspension of the power of alienation, as the property must in any event vest in possession in some of the designated remaindermen upon the death of the life-tenant.
    
      Edward L. Collier, for app’lt; Milo J. White, for resp’t.
    
      
       Reversing 39 Hun, 656. mem
      
    
   Ruger, Ch. J.

—In October, 1875, William I. Yeomans died seized of real estate in Dutchess county, leaving a will by which such land was devised as follows: “I do give and bequeath to my son, Henry J. Yeomans, the use of my farm during the term of his natural life, and at his decease to be equally divided among his children, should he leave any, but should there be no issue or descendants him surviving, then to be equally divided among my brothers’ and sisters’ children or issue.”

In September, 1877, proceedings were taken by the executors to sell such real estate for the payment of the debts; of the testator, and at that time Henry J. Yeomans was and still is living, as also were his four children, being each of the age of five years or under.

There were also then living a number of children of the brothers and sisters of the deceased testator who were not cited upon the hearing of the application before the surrogate and took no part therein.

The principal question now presented is whether a valid order for the sale of such real estate could be made by the surrogate in view of the fact that the children of such brothers and sisters were not cited to appear before the surrogate on such hearing and took no part therein. We are of the opinion that a sale ordered under such circumstances would not cut off the rights of persons not cited thereto. The clause of the will under consideration constituted a valid disposition of the property in question and gave a life estate to the testator’s son, Henry J. Yeomans, with remainder over to his children, or their issue if he left any, but in case there were none, to the children of his brothers and sisters.

Upon the death of the testator the first limitation vested a remainder in fee in the children of Henry J., and the second limitation constituted a good contingent remainder, subject to be defeated, however, if any of said Henry’s children survived their father. Section 16, art. 1, tit. 2, chap. 1, part 2, 3 R. S. (7th ed.), 2176.

By the express terms of the will a contingent remainder in the children of the testator’s brothers and sisters was created which would take effect in possession upon the death of the said Henry leaving no child or issue of such child him surviving. There was in this case no improper suspension of the power of alienation, as the property must in any event vest in possession in some of the designated remaindermen upon the death of the life tenant. The right of the contingent remaindermen constituted an estate in lands of which they could not be divested during the existence of thq life estate, except by appropriate legal proceedings to which they should be made parties.

It was said in Monarque v. Monargue (80 N. Y., 325), “that unless the contingent interests of unborn issue— have been in some way barred, the title of a purchaser in —partition proceedings ” would be imperfect. It is further said that “a judgment and sale in partition may conclude contingent interests of persons not in being, but this is only in cases where the judgment provides for and protects such interests by substituting the fund derived from the sale of the land in place of the land, and preserving it to _ the. extent necessary to satisfy such interests as they arise.” If such proceedings would not bar contingent interests of persons unborn, it is quite apparent that the interests of living remaindermen cannot he barred except by proceedings to which they are parties.

When a testator devised “the use and improvement” of certain real estate to his grandson, with power to dispose of the same to the children or grandchildren of the devisee, and for want of such children or grandchildren the will directed that the estate should descend to the testator’s son and his heirs, it was held that the grandson took a life estate and not a fee-tail, with remainder in fee to his children and grandchildren, and with an executory limitation over to the testator’s son in case the grandson should leave no child or grandchild living at the time of his death. It was further held that the first born child of the grandson took a vested remainder in fee subject to open and let in after born children (or grandchildren), and subject to be defeated by the execution of the power of appointment among the children or grandchildren, given by the will to the testator’s grandson. The grandson, after the birth of five children to him, applied to chancery for authority to sell the estate in behalf of the children, and a sale was directed accordingly and the grandson was authorized by the order to convey so as to bind all the interest of the children born, or thereafter to be born, as well as the contingent interest of the testator’s son. A sale and conveyance was made pursuant to the order. It was held that the pur•chaser took a title which was defective for the reason that the grandson might survive his children and grandchildren, in which event the limitation over to the testator’s son and his heirs would take effect, and for the further reason that the grandson by exercising the power of appointment might give the estate to grandchildren, who were not parties to the proceeding. Baker v. Lorillard, 4 N. Y., 257.

We think this authority, if authorities were needed on a question so clear, is decisive of this case, and that the title taken by the defendant on the surrogate’s sale was fatally defective.

The provisions of sections 38, 39 and 40, of title 4, chapter 6 of part 2 of the Revised Statutes, 113, 114, of vol. 3 (6th ed.), providing that sales under the title in question should not be adjudged invalid for the certain irregularities specified, obviously has no application to the rights of persons not parties to the proceeding. We are, therefore, of the opinion that the purchaser under contract from the defendant was not obliged to accept the title tendered by the defendant in fulfillment of his obligation.

It is unnessarv to consider the other questions in the case, as the question discussed is conclusive of this appeal.

The judgment of the general term must be reversed and judgment ordered for the plaintiff, on the stipulation contained in the case with costs.

All concur.  