
    George C. Smith and Anne K. Smith, His Wife, Appellants, v. Thomas J. Allen, in His Own Right and as Administrator, etc., of Margaret L. Schultz, Deceased, and Others, Respondents.
    First Department,
    July 7, 1910.
    Real property—partition—possession required — effect of contest over will devising lands.
    The possession of lands required by section 1533 of the Code of Civil Procedure in order to maintain partition is not a strict pedis possessio ; a right to possession is sufficient.
    One holding an undivided five-sevenths of land under a conveyance from the sole devisee who had purchased the interests of five of the seven heirs pending a contest over the probate of the will, which lands are in the actual possession of a temporary administrator, may maintain an action for partition, even though the contest is still pending, if there be no claim that the owner left any other will.
    Appeal by the plaintiffs, George 0. Smith and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew" York on the 12th day of April, 1910, upon the decision of the court, rendered after a trial at the Hew York Special Term, dismissing the complaint.
    
      
      Lanman Crosby [Theodore H. Silkman with him on the brief], for the appellants.
    
      Headley M. Greene and William P. Maloney, for the respondents Lewis and Hoelzle.
   Miller, J.:

This action is brought to partition lands of which Charlotte Miller died seized in 1901. A contest over the probate of her will is still pending. Margaret L. Schultz, the sole devisee named in the unprobated will, purchased the interests of five of the seven heirs at law, and thereafter conveyed to one Duff five equal undivided sevenths of the property, which the said Duff conveyed to the plaintiff George C. Smith. There is no suggestion that Charlotte Miller left any other will than the one in questionand it is not disputed that when the action was commenced the plaintiff was the owner of an undivided five-sevenths, as grantee of both the heirs at law, and the sole devisee, subject to the inchoate right of dower of his wife. The property is in the actual possession of a temporary administrator. But section 1532 of the Code of Civil Procedure does not require a strict pedis possessio. It requires a right to . possession as distinguished from the cases in succeeding sections. ' (Weston v. Stoddard, 137 N. Y. 119.) The plaintiff was constructively in possession. The possession of the temporary administrator must be deemed that of the rightful owners. Plainly, therefore, the plaintiff was in a position to maintain partition. He could not allege in his complaint who owned the other undivided two-sevenths because that still remained undetermined. But section 1542 of the Code of Civil Procedure seems to provide for just such a ease, and the plaintiff alleged that the interests of the other, parties were uncertain and unknown to him and could not be determined until it was finally adjudicated whether Charlotte Miller died intestate. The other undivided two-sevenths belongs either to her devisee, Margaret L. Schultz, or .to the-two heirs at law who have not conveyed to the said Margaret Schultz. There is ho reason why the plaintiff should have his interest tied up until the final determination of the will contest, and the Code expressly provides for such a case. (See Code Civ. Proc. §1547.)

• The learned court at Special Term entertained the view that it was incumbent upon the plaintiff to allege and establish that the apparent devise of Charlotte Miller was void as provided by section 1537 of the Code of Civil Procedure, and that the plaintiff was not in a position to maintain an action to determine the validity or effect of the testamentary disposition of the real property. But this action is not governed by section 1537 nor is it •an action to determine the validity of a testamentary disposition. It is simply an action for partition, brought by the undisputed owner of an undivided five-sevenths, whq has an immediate right to possession. If actual partition cannot be had, the share which is in dispute may be paid into court to await the determination of the will contest. As the facts are not in dispute, there is no reason why the usual interlocutory judgment should not be. entered.

The judgment should be reversed and an interlocutory judgment of partition and sale directed, with costs to appellants to be paid out of the proceeds of sale.'

Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

Judgment reversed and interlocutory judgment of partition and sale directed, with costs to appellants to be paidfOut of the proceeds of sale. Settle order on notice.  