
    William Walther, Executor, etc., App’lt, v. Charles Regnault et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 9, 1890.)
    
    
      1. Wills—Leasehold — Accounting by executor of life tenant for RENTS RECEIVED AFTER HER DEATH.
    In 1880 J. B. B. died seized of a leasehold, and by his will bequeathed it to his widow for life, remainder to his children. The lease ran out in 1889. The widow died in 1687. One of her sons, her administrator, thereafter collected the rents, supposing the leasehold to have been the absolute property of his mother at her decease. One of the daughters died in 1888 and plaintiff is her executor. Held, that the children were tenants in common; that so far as the administrator had held the leasehold his possession was not adverse; that plaintiff’s testator was in constructive possession; that plaintiff was entitled, from the administrator, to an accounting for the rents collected after the widow’s death in 1887, and up to the commencement of this action. That the fact that before the trial the leasehold had expired did not affect the right to rents accruing during the term of the lease.
    2. Same—Partition.
    While a leasehold has been designated by statute as assets in the hands of an administrator, no provision has been made for its distribution or division in a surrogate's court; hence the present action is right and affords a proper method of division.
    Appeal from a judgment dismissing the plaintiff’s complaint in an action for the partition of real property.
    
      Henry F. Lippold, for app’lt; Emil A Arnold, for resp’ts.
   Daniels, J.

The action was commenced on the 8th day of October, 1888, for the partition of a leasehold estate. The estate was owned by John B. Eegnault, who died on or about the 3rd of February, 1880. He left a will by which, after the payment of his debts, he gave and bequeathed to his widow, Henrietta Eegnault, all his property, both real and personal, in such a manner that she should have the free use of the income of the same, and especially of all leases of real estate which might be drawn in his name. And he further directed that the estate left by her at the time of her decease should accrue to his children in equal shares.

The person nominated as executor in the will died prior to the decease of the testator, and letters of administration with the will annexed were thereupon issued to the testator’s widow. And she continued in the use and occupation of the property until the time of her own decease, which was on the 19th of April, 1887. And on the 31st of May of the same year letters of administration upon her estate were issued to Charles E. Eegnault, a son of these parties. And he immediately took possession of the premises in controversy and collected the rents, supposing and believing, as the other children did, that the leasehold estate was the property of the widow at the time of her decease.

And they continued in this belief until near the time of the commencement of this action, after which letters of administration with the will annexed upon the estate of John B. Eegnault were issued by the surrogate of the county of Hew York to the same person. On the 5th of February, 1888, Henrietta W. Eegnault, who was also one of the children of the testator, died leaving a will in which she nominated the plaintiff, her husband, as her executor. And letters testamentary were issued to him on the 28th of April, 1888. There were no debts owing by the testator at the time when letters of administration upon the estate of his widow were issued, and the estate which the action was brought to partition consisted of a term of years created by a lease made on the 6th of May, 1869, and extending for the period of twenty years. It appeared upon the trial that after the decease of the widow and to the time of the decease of the daughter of herself and the testator, the defendant Charles Eegnault collected the rents and income of the leasehold estate, and that, this was done under the supposition that he was entitled to do so as the administrator of the widow’s estate. In fact he was not so entitled as-the case was determined at the trial. And while he ostensibly-acted in the capacity of the administrator of the widow’s estate, his only right or title to collect and receive the rents of the leasehold estate was that which vested in him as a tenant in common with the other children of the testator John B. Eegnault.

That resulted from the language of the testator’s will, by which he evidently intended to give his estate to his widow for her life, or until she should marry again, and after the occurrence of either of these events, that the estate should then be divided equally among his children. This was a valid disposition of his-estate. And as it was intended by him that his children should take the property in equal shares after the decease or remarriage of the widow, that intention is required to be supported and carried into effect by the law. Wager v. Wager, 96 N. Y., 164.

The remainder, after the decease of the widow, as she did not marry again, became the property of the testator’s children as tenants in common. It vested in them certainly at the decease of the widow, if not from the time of the decease of the testator. And they took their title to the property not by descent, but as purchasers under the language of the will.

There was no ouster of the other children of the testator by the defendant, Charles Eegnault, nor was there any adverse possession of the property, but' the rents were collected and received under the erroneous supposition merely that he was entitled to-collect them as the administrator of his mother’s estate. But. after this was found to be an erroneous view of his relation to the-property, and after the commencement, of this suit, he took out letters of administration upon the estate of his father, the testator. He was, therefore, in judgment of law in the possession of this property solely as a tenant in common.

And his possession was constructively that also of the other-tenants in common interested equally with him in the propertj1-. And that vested the daughter of the testatrix and the wife of the-plaintiff with an equal right to the rents and profits of the property with the other children of the testator, including Charles. Eegnault, who was in receipt of such rents. And for those rents they were entitled to an accounting from him for their shares in this manner received by him. They were also entitled under the-language of § 1532 of the Code of Civil Procedure to maintain an action for the partition of this leasehold estate. For that has provided where two or more persons hold and are in possession of real estate as joint tenants, or as tenants in common, in which either of them has an estate of inheritance or for life, or for years, one or more of them may maintain an action for the partition of the property. And this possession has not been required to be the actual, but it may be the constructive possession of the property. And the plaintiff’s testatrix was in such possession from the time of the cessation of the life estate-provided by the testator’s will for his widow, from the period of her decease until she herself departed this life. And her share of the rents and income of this leasehold estate vested in and was owing to her at the time of her decease. And after that event had taken place, they were payable to and collectible by the plaintiff as her executor. And it was a substantial part of the-action prosecuted, by him that this accounting for these rents and income should take place, and that the defendant Charles Regnault, who had received them, should pay over to the plaintiff' the proportion of those moneys owing to his wife at the time of her decease. And that liability, under the circumstances, appears to be sustained by the law relating to this case.

It is true that the leasehold estate has been designated by the-statute as assets to be administered by the executor or administrator, but the statute has provided for no division or distribution of an estate of this description by the action of the surrogate. It may be sold, where that becomes necessary, for the payment of debts, but that necessity did not exist in this case, for there were no debts of the testator remaining unpaid. And in that event the provisions of the statute which have been referred to, vesting each tenant in common with the right to maintain an action for the partition of the estate, and by § 1589 to an accounting of the rents received, became controlling and effectual over this property, securing to each one of the tenants in common the right to maintain the action of partition and for an accounting. Brevoort v. Brevoort, 70 N. Y., 136, 139.

And to that extent this action should have been sustained instead of dismissing the complaint, as that was done at the trial.

But the further relief which it was the object of the action to-attain was not then within the power of the court. There could be no actual partition of the leasehold estate, neither could a sale be directed. For at the time of the trial this leasehold term had ended, and the tenancy in common by that event in this term of years had ceased. But the cessation of that term in no manner prevented the plaintiff from obtaining an accounting of the share of the rents and income received up to the time of the decease of his wife.

By the terms of the lease the lessee became entitled to a renewal of it for another term of twenty years at a rent to be fixed according to the appraised value of the land, or to payment of the value of the building erected and being upon the property. And such a lease was taken by the defendant Charles Regnault in his capacity of administrator with the will annexed of the estate of John B. Regnault, deceased. Whether he could legally take the renewal lease in that manner it is not necessary to consider or decide. For if he could not, the disposition of any controversy relating to that subject must necessarily be made in another action, unless it shall be satisfactorily arranged by the parties between themselves.

But the plaintiff, as the executor of- the estate of his wife, was entitled to an accounting for her share of the rents and income of this leasehold property. And so was the defendant Mary Riederer entitled to a similar accounting. And all the parties who may be interested in that accounting have been made defendants in this action. The final judgment should be reversed, with costs to appellants to abide the event, and an accounting ordered concerning these rents and income before a referee to be appointed by the court, and the right of the parties to costs in the action reserved until the confirmation of that report.

Yan Brunt, P. J., and Brady, J., concur.  