
    Louis Manley et al., Plaintiffs, v. Reuben M. Manley et. al., Defendants.
    (Supreme Court, New York Special Term,
    November, 1908.)
    Partition: Rights and propriety—Estates partible — Estates subject to powers: Procedure for partition — Petition or complaint — Allegations as to possession or seizin.
    Where the parties to an action for the partition of devised premises are severally described in thé complaint as decedent’s surviving children and grandchildren, and their rights, shares, and interests are particularly set forth, the failure to allege possession by plaintiffs or defendants does not render the complaint demurrable for insufficiency.
    
      Where a will provides for an allotment of the various shares of the devisees of decedent’s real property constituting his residuary estate, and it appears that the shares cannot be alloted by a division of the land without prejudice to the owners, the devisees may bring an action in partition; and a contention that they cannot take anything until the residuary estate is actually distributed, subsequently to payment of specific legacies, is untenable.
    Where in such case the executor was directed by the will to allot the shares of the devisees, and he was given a discretionary power of sale, the residuary estate, until the exercise of such power, must be treated as realty, and plaintiffs as devisees are entitled to exercise their statutory right to partition the property.
    Demtjbbees to complaint.
    George M. Brooks, for plaintiffs.
    Franklin G. Manley, for defendants.
   Dayton, J.

The plaintiffs bring their action in parti-

tion. The complaint alleges that Mary A. Manley died July 22, 1906, seized and possessed of certain real property in the county of ¡New York; that the decedent left a will containing a codicil, both of which were duly admitted to probate and letters testamentary issued thereon to Beuben M. Manley, one of the defendants, a copy of said will and codicil being annexed to the complaint; that said Mary A. Manley left her surviving the plaintiffs and the defendants who are severally described as her children and grandchildren. The rights, shares and interests of these parties to the devised premises are then particularly set forth, and it is alleged that the said premises are so situated that an actual partition cannot be had without great prejudice, and a sale is necessary. The complaint closes with the customary prayer in partition. To this complaint the defendants demur for insufficiency. It is their first contention that the complaint is insufficient because it contains no allegation of possession by the plaintiffs or defendants, and they rely upon Doane v. Mercantile Trust Co., 160 N. Y. 494, to support this contention. In that case there was no allegation showing plaintiffs’ right to bring the action, nor was there any averment disclosing the relationship of any party - to the testator. There was the bald allegation of seizin with no facts to support it. As has been shown (supra) this complaint contains a full disclosure of the relationship of the parties. The Doane case was distinguished quite recently by the Appellate Division in the case of Leidenthal v. Leidenthal, 121 App. Div. 271, on this very point, where the court said: “ The Court of Appeals, in Weston v. Stoddard (137 N. Y. 119), Satterlee v. Kobbe (173 id. 91) and Wallace v. McEchron (176 id. 424), has established the rule that possession is not necessary to the maintaining of an action of partition by one having an interest by ownership in fee in the property.” It is the second contention of defendants that plaintiffs, suing as devisees, are bound by the terms of the will. The argument that plaintiffs cannot take anything- until there is an actual distribution of the residuary estate by the executor, subsequently to the payment of the specific bequests, is untenable. The will provides for an allotment of the various shares, and it is that very allotment which is here sought. The will fixes the rights and interests of the parties in the real property, and because those shares cannot be “ allotted ” by division of the real property without prejudice to the owners thereof a sale and a partition of the proceeds are alleged to be necessary. The third objection to the complaint, that it is contradictory in respect to its recitals concerning the interest of Harriet S. Manley, is likewise untenable. The only property sought to be partitioned is that referred to in the will as the residuary estate, and the complaint alleges that Harriet S. Manley is seized of one-seventh of “ said premises,” which are those above described ” in the complaint. The will expressly provides that the shares of the plaintiffs are devised to them absolutely to have and to hold the same unto them and their heirs ” and - to their use forever.” The executor is directed to “ allot ” these shares, and is given a discretionary power of sale. Ho question of the construction of the will can arise, for it admits of but one construction. And, as the power of sale is not imperative until the executor should actually exercise the power, the residuary estate must be treated as realty, and the plaintiffs are entitled to exercise their statutory right to seek and obtain partition of lands in which they have an inheritance as tenants in common. Mellen v. Banning, 72 Hun, 176; Palmer v. Marshall, 81 id. 15; Wood v. Hubbard, 29 App. Div. 166; Stebbens v. Turner, 55 Misc. Rep. 593. The demurrers must be overruled, with leave to all defendants to answer over upon usual terms.

Demurrers overruled with leave to all defendants to answer over upon usual terms.  