Wagstaff v. Marcy , 54 N.Y.S. 1021 ( 1898 )

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.