
    CAMPBELL v. STOKES et al.
    (Supreme Court, General Term, Second Department,
    December 12, 1892.)
    Partition—Parties—Title op Purchaser.' An undivided interest in land was directed by will to be divided into several shares, one for each child of testator for life; with remainder to the lawful issue of such child per stirpes; and if a child died without issue he could dispose of his share by will, but if he failed so to dispose of it his share was to go to testator’s lawful issue. Held, that a sale of such undivided interest in a partition suit to which testator’s grandchildren were not made parties gives the purchaser no title as against them. Moore v. Appleby, 15 N. E. Bep. 377, 108 N. Y. 237, followed. Townshend v. Frommer, 26 N. E. Bep. 805, 125 N. Y. 446, distinguished.
    Appeal from special term, Kings county.
    Action by Felix Campbell against Olivia B. P. Stokes and Caroline P. Stokes to recover the balance due on contract of sale. From a judgment for the defendants on a demurrer to the counterclaim in the answer, plaintiff appeals. Affirmed.
    The material portion of the will referred to in the opinion is as follows:
    “(4) All the rest, residue, and remainder of my estate, real, personal, and mixed, whatsoever and wheresoever the same may be in possession, reversion, and remainder, I order and direct my executors and trustees to divide into so many shares as I shall have children living at my death, and children who shall have died leaving lawful issue living at my decease, such issue to represent such deceased child, and upon such division to allot to each then living child of mine one such equal share, and to the issue then living of any of my children who may have died leaving such lawful issue one such equal share, and I order and direct my executors and trustees to dispose of such shares from time to time, as follows: First. I give, devise, and bequeath one of said equal shares to the lawful issue (living at my' death) of each deceased child of mine, to take the same per stirpes, and not per capita, to have and to hold the same to them, their respective heirs, executors, administrators, and assigns forever, and I direct my executors and trustees to convey, transfer, pay over, and deliver the said share accordingly. Second. I give, devise, and bequeath one of said equal shares for each of my children living at my decease unto my executors and trustees as a separate fund, to have and to hold the same in trust, to receive the rents, issues, and profits thereof, and to apply the same to the use and support of such child for and during her and his natural life. Third. Upon the death of my daughter or son for whom the same is held in trust, I order and direct my said executors and trustees to convey', transfer, and pay over and deliver the said share to her and his lawful issue per stirpes, and not per capita, to have and to hold the same to such issue, their respective heirs, executors, administrators, and assigns forever. Fourth. Upon the death of any of my said children without lawful issue him or her surviving I order and direct my said executors and trustees to convey, transfer, and pay over and deliver the share so held in trust for such child to and among some or one of my descendants, or the widow of any son of mine, accord-lug to the directions that may be contained in the said last will and testament of such daughter or son. or in an appointment in the nature of a last will and test»ment made by her or him, to the person or persons, in the share or proportions, and according to the terms, provisions, and conditions, therein directed and contained. And I hereby authorize and empower such child of mine so dying to make such last will and testament, or appointment in the nature, thereof, appointing or directing the disposition aforesaid tó or among any of my descendants, or the widow of any son of mine, but not otherwise, whether such daughter be a feme sole or feme covert at the time of the making thereof. Fifth. "Upon the death ef the daughter or son for whom the said respective share is held in trust without leaving lawful issue at her or his death, and without leaving any last will and testament, or appointment in the nature thereof, appointing or directing a disposition of the same to or among the persons above designated, then I order 'and direct my said executors and trustees to convey, transfer, pay over, and deliver the said share to my lawful issue per stirpes, and not per capita, to have and to hold the same to such issue, their respective heirs, executors, administrators, and assigns forever. Sixth. I authorize and empower my said executors, and the survivors and survivor of them, from time to time, in their or his discretion, and notwithstanding any direction herein to the contrary, to pay, assign, and transfer to either of my sons such part of the securities invested for his benefit as they or he, in their or his judgment and discretion, shall deem best; that they hold the residue of such securities, if any, for the benefit of my said son, in the trust and for the purposes declared of and concerning the whole of his share; and I further authorize my executors and trustees from time to time to pay over to either of my said daughters such part of the said securities invested for their benefit as they may deem best, not exceeding the sum of five thousand dollars; and I direct, authorize, and empower my executors on the decease of any son of mine to apply to the use of his widow, if any my said sons shall leave, during her widowhood, one third part of the interest and income arising from the part or share of my estate ordered to be set apart for the benefit of my said son, or so much of the same as may remain at the death of my son if any advance shall have been.made to him pursuant to this clause of my will, providing the son dying, and leaving a widow shall have failed to leave a valid will, or to make any valid appointment in the nature thereof; and the residue of such share shall be disposed of by my said executors as hereinbefore directed. ”
    Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
    James & Thomas H. Troy, for appellant.
    Butler, Stillman & Hubbard, (Wm. Allen Butler and E. D. Cowman, of counsel,) for respondents.
   BARNARD, P. J.

The plaintiff agreed to sell to the defendants a piece of land, No. 74 John street, New York, for $80,000. Five thousand dollars was paid, and this action is brought to recover the balance. The sole question presented is whether the title of the plaintiff is merchantable. John Mortimer, Jr., owned an undivided third thereof in 1875, when he died. He left a will and six adult children. ■ By the will this property passed as residuary estate, and it was to be divided into six shares,—one for each child for life, with remainder to the lawful issue of such child per stirpes, and not per capita. If the child died without issue E3 could dispose of his share by will, and, if not, the testator gave his share to his (testator’s) lawful issue. Four of the six children of testator had children in 1875. A partition sale was made by action, and none of the grandchildren then in esse were made parties to it. The plaintiff’s title was acquired at this sale. These children were necessary parties in the partition action. Moore v. Appleby, 108 N. Y. 237, 15 N. E. Rep. 377. This case is very similar to the case presented by this appeal. There was a life estate by will :;ind remainder to children. It was héld that the children were necessary parties to a partition suit. The case of Townshend v. Frommer, 125 N. Y. 446, 26 N. E. Rep. 805, does not necessarily conflict with this decision. A married woman conveyed lands to trustees to pay income to herself for life, with a direction that the trustees convey at her death to her children then living. There was a mortgage on the property, which was foreclosed during the life estate, and the children were not made parties to the action. It was held that the children had no interest in the title while the life estate was running, and that consequently they were not necessary parties. No mention is made in the •opinion of Townshend v. Frommer of , the previous case of Moore v. Appleby. Other cases, decided previously, were distinguished, and the case of Moore v. Appleby was cited on the argument. Under these circumstances, it seems improbable that the court of appeals •deemed the former case applicable to the latter one. The plaintiff’s title is not, therefore, a merchantable one, and the judgment should be .affirmed, with costs.

DYKMAN, J., concurs.

PRATT, J.,

(concurring.) All parties concede that if Moore v. Appleby, 108 N. Y. 237, 15 N. E. Rep. 377, decided in 1888, is still the law, the plaintiff must fail. But in his behalf it is argued that by Townshend v. Frommer, 125 N. Y. 446, 26 N. E. Rep. 805, decided in 1891, the case of Moore v. Appleby is overruled, and that by the latter decision the plaintiff is entitled to recover. This view was ineffectually urged upon the court below. In reply it was well said that, as the former decision was not expressly overruled, we are not at liberty to regard it as overruled if any distinction can be found in the two cases. •It is enough to say upon this appeal that as the cases now stand the question involved is not so free from doubt as to justify this court in requiring a purchaser to accept the title. , It may well be that the court •of appeals saw some clear distinction between the two cases, but failed to point it out in the opinion. Judgment affirmed, with costs.  