Harris v. Larkins , 29 N.Y. Sup. Ct. 488 ( 1880 )

Barrett, J.:

This action was evidently instituted and carried through under a misconception of the plaintiff’s true legal status. It professes to-be an ordinary .action for the partition of real property, or in casé actual partition cannot be made without' great prejudice to the owners, for a sale and division of i;he proceeds. Such an action can only be maintained by some one having an estate or interest in the lands. The parties must hold and be in possession of lands, tenements and hereditaments, as joint tenants or as tenants in common, in which one or more of them shall have estates of inheritance, or for life or lives, or for years.” Here the plaintiff has no estate whatever. Her husband’s will, under which she claims and which is part of the record, creates in her favor nothing but a trust. The realty is not devised to her and her daughter for their respective lives, with remainder over to the latter’s children. The devise is explicitly to-the trustees, and the entire estate .is vested in them subject to the execution of the trust. It is quite clear, therefore, that there could be no partition at’the suit of a mere cestui que trust, nor could the express trust created by the will be nullified by at sale under a judicial decree in such an action. The plaintiff’s right as cestui que trust to the application by the trustees of the'rents, issues and profits to her use for life, is inalienable. So is the like right vested in her daughter. Of this there can be no question. •

'The estate which is vested in the trustees will remain, inviolate,. notwithstanding the decree herein, and the cestui que trust will still be entitled to enforce the performance of the trusts. The trustees have not appeared nor defended; nor was the action in form to extinguish the trusts. They would not, in ejectment by the purchaser, be estopped. The purchaser, in fact, could not rely upon an estoppel, as the record upon its face shows the invalidity of the proceedings. Nay, more, the infant children will not be cut off by the sale. Their legal estates will vest immediately upon the decease of their mother or grandmother, whichever may survive the other. The cases cited in support of this action (Brevoort v. Brevoort, 70 N. Y., 136; Howell v. Mills, 56 Id., 226; Clemens v. Clemens, 37 Id., 59; Mead v. Mitchell, 17 Id., 210; Blakeley v. Calder, 15 Id., 617) are entirely inapplicable. In all of them the plaintiff had some present or future estate either in his own right, or per arntrenie. In none of them was there an attempt by a person who had no estate of any kind, legal or equitable, to maintain partition or to effect a sale under the guise of such an action.

We must add that the trustees are highly reprehensible for remaining passive and evidently conniving with the plaintiff in her effort to defeat the provisions of her husband’s will, to subvert the trusts thereby created, and to effect a result which the laws of the State expressly forbid.

The order appealed from should be reversed, with costs, and the purchaser’s motion to be relieved granted, with costs.

Davis, P. J., concurred. Present — Davis, P. <T., and Barrett, J.

Order reversed and motion granted, with costs.