It seems to me that sections 42 and 43 of the Real Property Law are to be taken together, and that the law prohibits creating of more than two successive life estates, whether they be in trust or not. By this will, Margaret has a life estate; then on her death Howard has a life estate, or what is the same thing, the life interest held in trust; then at Howard's death, Proctor has a life estate, and at his death the property passes to Adelaide or her heirs. This, I think, violates the statute. After Howard's death there can be no more life interests. The gifts over to Adelaide or her heirs are stricken out and are of no effect. If the argument for the appellant be correct, there could have been a fourth estate, or Adelaide's share held in trust for her life, and the gift over on her death to a remainderman. The statute apparently prohibits this alternating between a life estate and one in trust so as to permit four of them. There could only be two life estates in trust under section 42, or two out and out life estates under section 43, and I do not believe we should combine them and make four life estates in the one will out of the same property.
If this be so, neither Adelaide nor her heirs were necessary parties to the Surrogate's proceedings. In other words, Proctor's life estate and the remainder to Adelaide or her heirs are stricken from the will by law. The fee vests in the heirs of the testator. However, I do not see *Page 339 why this should lead to a reversal of the Appellate Division. The two sons of the testator, Proctor and Howard, were made parties to the proceeding, and there is no claim that Elizabeth had any other heirs. Why should we assume that she had, or raise any doubts about the question when counsel have assumed, and the case has proceeded upon the theory that the only possible persons whose existence made the title defective were the uncited heirs of Adelaide? This is the only objection raised, and I do not see why we should raise others. Title has been refused solely upon the ground of the defect in this particular — the omission of Adelaide's heirs. We should not raise objections to a title which have not been raised below.
The regularity of the proceedings in the Surrogate's Court must be presumed until the contrary appears. The petition in that court of Proctor C. Welch alleges that the persons there named are the parties interested in the proceeding. This is the same as stating that Proctor and Howard are the only heirs of Elizabeth. The plaintiff has failed to prove that this is not so; the burden is on the plaintiff to prove the allegations of its complaint. The down payment of the purchase price is demanded because of a defect in parties to the proceeding in the Surrogate's Court. The plaintiff has failed to prove any such defect. It has offered no evidence whatever to show that there are any other parties interested in the proceeding, or that Elizabeth, the testator, had any heirs except those named in the petition, the interested parties. No oral testimony was offered; we have merely the records and an agreed statement of facts. The burden was on the plaintiff to prove that Elizabeth had other heirs than Howard and Proctor; in other words, to prove the defect which it alleged, especially as nothing in the record shows that she had other heirs, but in fact shows the contrary. The petition alleges, as already stated, that all the parties interested are cited in the *Page 340 Surrogate's Court. The burden was upon the plaintiff to prove the defect of title in this case, the same as it would be to prove an incumbrance or an outstanding title in any other case. The fact is, the point now raised by Judge HUBBS was never thought of, and is not mentioned in the briefs. The whole claim has been that the heirs of Adelaide mentioned in the will, not the heirs ofElizabeth, were not made parties to the Surrogate's proceeding. I, therefore, think we should affirm the Appellate Division.
CARDOZO, Ch. J., POUND, LEHMAN, KELLOGG and O'BRIEN, JJ., concur with HUBBS, J.; CRANE, J., dissents in opinion.
Judgment accordingly.