
    Sylvanus Walker, Resp’t, v. Carrie Downer, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 30, 1889.)
    
    1. Title—Emblements.
    The will of D. gave to his sons for life and to their survivors the use of a farm and the personal property, but directed that out of the avails they should support his wife, which support was made a charge on the farm. The surviving son mortgaged his interest in the lands and crops to plaintiff and afterwards died, and the crops were harvested by defendant, his widow. Held, that the title of the son to the growing crops was subordinate to the support of his mother, and he could not give a legal title to such crops which would enable his transferee to maintain a purely legal action thereon; that plaintiff’s remedy was by an accounting for what remained after the mother had received ample support and payment of the expenses of cultivating the farm in a proper manner.
    Appeal from a judgment of the county court of Monroe county and from an order denying the defendant’s motion for a new trial on a verdict directed for the plaintiff by the court.
    
      Turk & Barnum, for resp’t; G. M. Allen, for app’lt.
   Macomber, J.

The action is replevin to recover possession of certain crops consisting of oats, cabbages, straw and hay, claimed by the plaintiff.

Upon the trial it was conceded by the plaintiff that the hay did. not belong to him and no recovery was had therefor. The right of the plaintiff, if any, to maintain an action for the recovery of the possession of this property is derived solely from an instrument in writing under seal executed to him by one Byron Gr. Downer, bearing date the 17th day of May, 1884. By this paper Byron G. Downer transferred to the plaintiff all his right, title and interest in and to a certain farm of 110 acres in the town of Perinton, then occupied by Byron G. Downer, together with the rents, issues, profits and proceeds thereof, after paying therefrom the necessary expenses of cultivating, tilling and running the same in a workmanlike manner, and after paying the necessary living expenses of my mother, Maria Downer, as provided in the will ” of George W. Downer, the father of Byron G. “ This assignment is-made as collateral security for the payment by me to the said Sylvanus Walker of the sum of $2,300 and interest as follows: in the annual instalments .of $300 each, payable on the 1st day of April in each year until the whole of said sum is paid, with annual interest payable April 1st in each year.”

This instrument was a mortgage to secure to the plaintiff the payment of the sum of $2,300 and interest, as therein provided. It was not a deed of the land. All of these crops for which recovery was had in the court below, excepting the cabbages, were sown or planted by Byron G. Downer in his lifetime, but were cultivated and harvested by this defendant, his widow. They were undoubtedly emblements and belonged to Byron G. Downer, absolutely, and could have been transferred by him to the plaintiff, provided Byron G. Downer himself had an unincumbered title thereto. The important question, therefore, is whether Byron G.- Downer had such an unconditional and unincumbered title as life tenant as would enable him, by the instrument already mentioned, to convey a legal title of tírese crops to the plaintiff.

Byron G. Downer was one of two sons of George W. Downer, the former owner of the land, who left a last will and testament, bearing date the 14th day of June, 1876. By the second clause of this will he gave to his two sons, Byron G. Downer and John B. Downer, jointly, the use of this farm, with nil of his personal estate, to be held and used by them jointly for the period of their natural lives, and to the survivor of them. This gift, however, was made subject to the following provision: “ I hereby direct and provide that out of the proceeds and avails of said farm they, or the survivor of them, in case one shall die before the other, shall support, care for and maintain on the said farm my wife, Maria Downer, and my daughter, Celestia Downer, in accordance with their circumstances and conditions in life, and I hereby make their, and each of their, support a charge upon my said farm.” The son, John B. Downer, and the daughter, Celestia Downer, died before the execution of the assignment of Byron G. Downer’s interest to the plaintiff. The widow, however, of George W. Downer is still living. After the death of Byron G. Downer this defendant, his wife, carried on the farm substantially in the same manner, so far as the evidence shows, as her husband had previously done, harvested the crops, and deemed herself charged with the duty of providing for the support of her late husband’s mother, in accordance with the terms of the will. The plaintiff, standing upon what he deems to be a clear legal right, claims absolute title to these emblements, and has asserted the same by this action. In this we think he has mistaken his remedy.

The will of the husband of Maria Downer charged all of his real estate with the care and maintenance of his widow. This provision of the will did not merely make the support of Maria Downer a charge upon the land which could be enforced only by the sale thereof, as was done in the case of Schemerhorne v. Scherhorne, 6 John. Ch., 70. The will before us goes further. Maria Downer was entitled to the support and of the avails arising from the proper management of the farm, and had a direct interest and lien upon the proceeds or profits thereof, after paying the necessary expenses of cultivation. The title which Byron G. Downer had to all of the growing crops was subordinated to this paramount lien of the widow. He could convey no greater interest than he himself had, and could not give a legal title to the crops in advance of their harvesting which would enable his transferree to maintain a purely legal action thereon. It was incumbent upon the plaintiff before asking the interposition of the court in his behalf, to show that Maria Downer, the widow, had received ample support according to her needs and circumstances; then if. there remained anything over to ask the person .who managed the farm to account therefor after the death of Byron G.. Downer, and up to the time of harvesting and marketing these crops, over and .above the necessaiy expenses for cultivating, tilling and managing the farm in a workmanlike manner. Such expenses would necessarily include a fair compensation to the person cultivating the land. Maria Downer, it is true, is not a party to this action, and her rights could not be enforced herein, but this circumstance does not strengthen the plaintiff’s case, for he must rely wholly upon the legality and sufficiency of his own title in order to maintain the action to recover the possession of this property, and not upon the want of title thereto by the nominal defendant.

If these views be correct it would be idle to grant a new trial, for by no amendment of the proceedings could the county court be clothed with the necessary equitable powers to adjust the rights of all the parties interested in this action.

The judgment should be reversed, with costs, both in this and the county court.

Barker, P. J., and Dwight, J., concur.  