
    Howard Conkling, Resp’t, v. New York Elevated Railroad Company et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 16, 1894.)
    
    Partition—Provided by will.
    Where a will directs the appointment of commissioners to partition testator’s real estate, a deed from commissioners claiming to be so appointed and possession under such deed are prima facie evidence that partition was made as directed by the will.
    Appeal from a judgment in favor of plaintiff.
    iü.- L. Maynard,.for app’lts ; E. 0. Perkins, for resp’t.
   Yan Brunt, P. J.

This action was brought to restrain the defendants frqm the maintenance and operation of their elevated railroad in front of the plaintiff’s premises, Mo. 274 Third avenue, and also to obtain past damages. The court awarded judgment for past damages, and also for fee damages; with an injunction in the alternative. The defendants appeal from this judgment, and allege error in that the plaintiff failed to show that the fee of the property in question was vested solely in him, and that he could not give a good title to the easements interfered with by defendants in return for the alternative sum which the defendants were directed by fhe judgment to pay ; and also that the plaintiff failed to show any substantial injury to the fee of the property involved in this action.

The first objection mentioned is .based upon the claim that there was no proper partition of the property among the parties who became interested by the appointment made in the will of one Catherine L. Wolfe. The premises in question were part of the estate of Peter Lorillard, who died on the 23d of May, 1843, in possession thereof, leaving a last will and testament dated the 24th of /February, 1843. By this will Peter Lorillard directed his residuary real estate to be divided into five shares, one of which he devised absolutely to his daughter, Dorothea A. L. Wolfe, with full power to grant and devise the same without the concurrence of her husband.. The testator also empowered his executors to appoint commissioners to divide and . partition the residuary estate. Such commissioners were duly appointed, and made such.division by deed dated July 1, 1843, and the premises in question, with others, were thereby conveyed to Dorothea A. L. Wolfe. Dorothea A. L. Wolfe died in possession of the premises in question, leaving a last will and testament bearing date the 27th of June, 1865, which will was duly admitted to probate and recorded on the 12th of November, 1866. By the third clause of her will the said Dorothea A. L. Wolfe devised to trustees all the real estate devised to her by her father in fee for the benefit of her husband and daughter during, their lives and that of the survivor, giving to the daughter power to appoint the said real estate to and among her descendants, if any, in such lawful manner or proportions as she might think proper; and, in default of such appointment, the said Dorothea A. L. Wolfe devised said estate to the descendants of her said daughter. The said will further provided that, in case of the decease of the testatrix’s daughter without leaving issue her surviving, said real estate should go to her nephews and nieces, children of her brothers and sisters, living at her daughter’s decease, as tenants in common in equal shares. But by said will' the daughter was authorized and empowered, nevertheless, in the event of her so dying, leaving no child or other descendant, to limit and appoint said real estate by will, executed without the concurrence of any husband, to and among the descendants of the brothers and sisters of said testatrix in such manner and in such proportions as her said daughter in her discretion might think proper. The said will further provided as follows: “And should the said trust estate, upon the termination of said trust, go or belong, under the provisions of this my will, to more than one person, then I empower and direct the said trustees to cause an equitable partition thereof to be made, under their direction, to and among the parties so entitled; and for that purpose to nominate and appoint, under their hands and seals, three suitable persons as commissioners to appraise, allot, and set apart, in such manner as may, be just and equitable, the respective shares of such estate to the parties entitled thereto.” Catherine L. Wolfe, the daughter of the testatrix referred to in the above will, died in 1887, never having been married, leaving a last will and testament bearing date the 14th of February, 1884, and a codicil bearing date the 24th of March, 1885, which were duly admitted to probate. By this will Catherine L. Wolfe appointed the estate, real and personal, held in trust, pursuant to the provisions of her will, to certain nephews and nieces, and the surviving children of a deceased niece, and a deceased nephew of Dorothea A. L. Wolfe, upon the death of said Catherine L. Wolfe. The persons acting as trustees under the will of Dorothea A. L. Wolfe appointed commissioners, who partitioned the real estate which had been held in trust fo,r said Catherine under the third clause of the will of said Dorothea A. L. Wolfe between the devisees and appointees thereof under the will of Catherine L. Wolfe, and deeds were executed conveying the shares to the persons to whom they were allotted, and the grantees in said deeds went into possession of the same. The premises in question were allotted to Alfred R. Conkling, Howard Conkling, and Laura R.. Conkling as tenants in common, and subsequently said Alfred R Conkling and Laura R. Conkling conveyed the premises in question to the plaintiff.

It is urged that there is no proof that-commissioners were appointed under the will of Peter Lorillard, the former owner, and we think all the findings the defendant could demand have been found by the court, and there is no reason for disturbing the judgment. Judgment should be affirmed, with costs.

All concur.  