
    Emily Wagstaff, Plaintiff, v. Fidelia Marcy et al., Defendants.
    (Supreme Court, New York Trial Term,
    October, 1898.)
    Partition — Attack upon the will of the ancestor — Jurisdiction — Parties — Res ad judicata.
    In an action of partition brought by an heir-at-law against other heirs-at-law, it appeared that, after her ancestor had contracted to sell the premises in question, he died before performance and bequeathed all his property to his daughter Jessie and that thereupon an assignee of the contract of sale brought an action for its specific performance, to which Jessie and all the heirs-at-law of the ancestor were made parties. Jessie died and the action having been revived against her representatives and those of the ancestor, these representatives were subsequently adjudged to convey to the purchaser’s assignee, and it was further adjudged that the heirs, other than Jessie, had no title nor interest in the premises.' The representatives conveyed as directed. Prior to this decree the present action was begun and was based upon the ground that the devise made by the ancestor to Jessie was void for lack of testamentary capacity, etc.
    Held, that the scope of an action of partition was broad enough to embrace a contention like the present, affecting a will of real estate, and respecting which will the heir apparently had no other remedy than to attack it. That, as the action was brought before the decree was made in the action for specific performance, the court acquired a jurisdiction of the subject-matter which was not divested by the subsequent conveyance made upon the part of Jessie.
    That, while the judgment obtained by the assignee of the contract was unimpeachable and he was not a necessary party to the present action, the judgment in his action was not, as between the heirs, res adjudicata, and that they might, as between themselves, litigate any issue which they chose to make.
    On March. 5, 1897, William E. Parsons, as owner of one-sixth, joined with the other owners of the remaining five-sixths, in an agreement to convey to one Walker, the fee of premises Eo. 8 Barclay street, this city. Walker, the vendee, transferred his rights under the contract to Joseph Meeks. The owners of the five-sixths performed their part of the contract by conveying their title to Meeks, the assignee of the vendee.
    Before the time came for delivering the deed, to-wit: April 11, 1897, William E. Parsons died, leaving a will dated December 3, 1896, which was duly probated as a will of real estate May 24, 1897, in and by which he devised and bequeathed all his property, both real and personal, to his daughter Jessie ¡K. Parsons, and appointed her his sole executrix. Meeks thereupon brought an action for specific performance as to this one-sixth interest, making the devisee and executrix of Parsons and all his heirs-at-law parties defendant. Pending suit, the daughter, Jessie K¡. Parsons, died, leaving a will, and the action as to her was revived by making Simpson & Werner as her executors, and also as administrators, with the will annexed of William E. Parsons, parties.
    
      The suit resulted in a decree filed April 27, 1898, and by it Simpson and Werner, as executors and administrators aforesaid, were directed upon receiving the balance of the purchase money to convey the one-sixth interest to Meeks, which they did, and Meeks thereby became the owner of the entire fee. It was also adjudged by the decree, that the heirs-at-law of William E. Parsons (other than the said Jessie K. Parsons) had no right, title, interest or claim in or to the property. The present action commenced prior to said decree is by Emily Wagstaff, one. of the heirs of William E. Parsons, against the other heirs of said Parsons, including the representatives of his deceased daughter, to partition the one-sixth interest which he formerly owned, upon the ground that the devise by him to his daughter Jessie K. Parsons was void for want of testamentary capacity and for fraud and undue influence.
    The defendants Simpson and Werner, executors and administrators aforesaid, insist that as none of the parties to the action have any present interest in the realty, the action will not lie.
    Myers, Goldsmith & Bronner, for plaintiff.
    Cardozo Bros., for defendants Simpson and Werner.
   McAdam, J.

The suit in form for partition of real property has for its ultimate purpose the avoidance of the will of William E. Parsons, for want of testamentary capacity, so that the proceeds of the sale he contracted to make prior to his death may be distributed among his heirs-at-law as though there had been no will. Pryer v. Howe, 40 Hun, 383. The judgment attainable by the plaintiff under the peculiar circumstances of this case can be no other than a finding that the will is void; that .the proceeds of sale may be divided among the heirs. This is allowable, because a plaintiff is entitled to any relief consistent with the case made by the complaint and embraced within the issue, irrespective of the relief demanded. Code, § 1207; Bell v. Merrifield, 109 N. Y. 202. After making the contract for the sale of the realty, William E. Parsons, as vendor, became the owner of the purchase money, and his vendee, the equitable owner of the land. Story’s Eq. Jur., § 790; Williams v. Haddock, 145 N. Y. 144; Moore v. Burrows, 34 Barb. 173; Adams v. Green, id. 176; Smith v. Gage, 41 id. 60; McKechnie v. Sterling, 48 id. 330; Thomson v. Smith, 63 N. Y. 301. When William E. Parsons died, his personal representatives became entitled to receive the purchase money and hold it for Ms creditors, if their demands required it. If not so required, it wouM have gone to Ms heirs-at-law, but in consequence of the devise by Mm of the land, it would go to Ms devisee, Jessie K. Parsons. McCarty v. Myers, 5 Hun, 83. The will devising the land to Jessie K. Parsons was not revoked by the subsequent sale the testator contracted to make. 2 R. S. (9th ed.), p. 1878, § 45; Gaines v. Winthrop, 2 Edw. Ch. 571. The only legal change effected was that the devisee took the proceeds instead of the land. She nevertheless took the proceeds as land, because devised to her as land, and the heirs have elected to treat the money as land. She held the legal title, subject to the trust which attached to the land, and tMs trust she executed by carrying out her testator’s contract by a conveyance of the land to the vendee. The doctrine of equitable conversion as applied to the parties.— heirs and devisee — does not defeat the remedy. If there had been legacies charged on the land, the lien would have been transferred to the purchase money. Guelich v. Clark, 3 T. & C. 315. So, if the judgments had been recovered against the vendor subsequent to the contract of sale. Moyer v. Hinman, 13 N. Y. 189. If Meeks, for any lawful reason, had been excused, from taking under his contract, the devisee would have kept the legal title to the land, and remained its owner. The action having been commenced prior to the filing of the decree in the suit of Meeks v. Parsons, for specific performance of the contract, jurisdiction of the court over the subject-matter attached, and was not' diverted by the conveyance subsequently made by the devisee. As the present controversy can in no manner prejudice Mr. Meeks, Ms presence is unnecessary (Code, § 452), and the application to make him a party will be denied. His title is unimpeachable. The judgment in his action precludes all question as to that. But as between the heirs it is not res adjudícala, and they may litigate as between themselves any issue they choose to make. Smith v. Hilton, 50 Hun, 236; Ostrander v. Hart, 130 N. Y. 406. The scope of the action for partition under the various statutes and decisions is sufficiently comprehensive to embrace the present contention, affecting as it does a will of real estate, respecting which the heirs apparently have no other remedy than to attack it to protect their rights. The motion to dismiss the complaint will be derned, and the trial as to testamentary capacity ordered to proceed on Uovember 14th, in Part XI.

Ordered accordingly.  