Anson S. Sheldon died in the year 1907, leaving a last will and testament made in 1903, whereby he devised all his property, both real and personal, to his wife Juliaette, and made the following provision for his daughter Carrie A. Sheldon:
"Second. My daughter Carrie shall have a home and support in the house on the farm that I shall own at my decease, or, if after my decease, my wife shall deem it necessary to remove to some other place, my daughter shall be provided with a home and support by my wife Juliaette."
At the time of making the will, the testator was the owner of a farm containing about 103 acres, and worth about $1,800. His estate at the time of his death consisted of the farm and of personal property of the value of about $550. His heirs at law were the plaintiff, Ida A. *Page 348 Chew, the defendant Herbert C. Sheldon, neither of whom is mentioned in the will, and the defendant Carrie A. Sheldon in whose favor provision for a home and support was made.
The defendant Carrie A. Sheldon was about fifty years old when her father died. She had never married but had always resided at home with her parents. The testator's other children, the plaintiff and the defendant Herbert C. Sheldon, left home when comparatively young. The testator's wife died before her husband and thereafter and until the demise of the testator the daughter Carrie resided alone with him on the farm referred to in the will. After her father's death she continued to occupy the farm as her home and had her support therefrom with the acquiescence of all the other parties to the action until April, 1909. She had no property except about three or four hundred dollars, which she had saved, and that, together with the provision in the will, were her only means of support.
The plaintiff brings this action for a sale of the farm and a division of the proceeds of the sale among the parties to the action, and for an accounting. It is alleged in the complaint, and the court has found as a fact, that the farm is so situated that actual partition thereof cannot be made without great prejudice to the owners. The action is resisted by the defendant Carrie A. Sheldon on the ground that a sale as demanded in the complaint would be in violation of the provisions of the will giving her a home on the farm and maintenance therefrom, and the defendant Herbert C. Sheldon joins in that defense.
It is a well-settled rule that at common law, as well as by statute, partition among tenants in common of real property is a matter of right, where they do not desire to hold and use the property in common. (Smith v. Smith, 10 Paige, 470; VanArsdale v. Drake, 2 Barb. 599; Willard v. Willard,145 U.S. 116.) But it is an equally well-settled *Page 349 rule that "equity will not award partition at the suit of one in violation of his own agreement, or in violation of a condition or restriction imposed upon the estate by one through whom he claims." (Dee v. Dee, 212 Ill. 338, 354; Kepley v.Overton, 74 Ind. 448; Serena v. Moore, 69 N.J. Eq. 687;Latshaw's Appeal, 122 Penn. St. 142; Swaine v. Denby, L.R. [14 Ch. Div.] 326; Holden v. Rush, 119 App. Div. 716;Tucker v. Tucker, 122 App. Div. 308; Buschmann v.McDermott, 154 App. Div. 515; and cases cited in 30 Cyc. 185.)
It is apparent from a reading of the will that the especial objects of the testator's bounty were his wife and the daughter who had remained at home. He makes no mention of his other children who went away early in life. He gave all his property, real and personal, to his wife, but charged the real estate with the burden of providing a home and means of support for the daughter. The home was to be in the house on the farm, and the support was to come from the farm. The only way in which the daughter could be deprived of this home and means of support was by the act of the mother, who might remove from the farm, in which case she was required to provide a home and support for her daughter in some other way. The death of the mother took away the only person who could defeat the daughter's claims upon the land. The daughter took no estate in the land but a personal interest or bequest which constituted a lien or charge thereon. (Thurber v. Chambers, 66 N.Y. 42; Borst v. Crommie, 19 Hun, 209;Kelsey v. Western, 2 N.Y. 500, 508; Kingman v. Kingman,121 Mass. 249.)
The amount and value of the testator's estate were proved, as has been mentioned, and it is manifest that if the farm were sold and the entire proceeds devoted to the purpose of providing a home and support for the daughter, they would be entirely inadequate; whereas, the farm itself now provides a home, and with the personal exertions *Page 350 of the daughter it can be made to provide sufficient for her support.
A sale of the farm which carries with it and cuts off the claim of the testator's daughter Carrie to support and maintenance, will entirely defeat the scheme and intention of the testator, and the plaintiff's demand for relief to that extent should be denied.
The plaintiff argues further that the property may be sold free from the claim of the defendant Carrie A. Sheldon, upon the ground that the directions in the will for her support and maintenance are void as being repugnant to the prior devise of the farm in fee to the testator's wife. And also that the bequest in favor of the daughter lapsed with the lapse of the devise to the wife. That argument again runs counter to the manifest intention of the testator. As has been already said, the testator was desirous not only of properly caring for his wife, but of providing a home and means of support for his daughter as well, and his will should receive the most favorable construction to accomplish the purpose intended. There is nothing repugnant between the provisions of the will giving the testator's property to his wife, and charging the property in her hands with the maintenance of the daughter. Full effect can be given to every part of the instrument, and that the law requires in every case. (Matter of Title G. T. Co., 195 N.Y. 339; Scott v.Stebbins, 91 N.Y. 605, 615; Sherrer v. Bartlett, 45 App. Div. 135. ) The bequest to the daughter of a lien on the farm was not so dependent on the devise to the wife as to lapse with the lapse of the devise. It was independent, and was binding on the farm in whosesoever hands the land might come. (Thurber v.Chambers, 66 N.Y. 42, 48; Birdsall v. Hewlett, 1 Paige, 32.)
The complaint of the plaintiff, however, should not have been dismissed altogether, but judgment should have been given for a sale of the farm subject to the personal lien and claim of the defendant Carrie A. Sheldon *Page 351 for her maintenance and a home thereon with the right to possession of the farm for the purposes of her lien and claim. The plaintiff and her sister, the defendant Carrie, and her brother Herbert C. Sheldon, were the owners as tenants in common of the farm, and their interests as such tenants in common were subject to partition or to a sale and division of the proceeds if actual partition could not be made. (Borst v. Crommie, supra; Code C.P. § 1539.)
I recommend that the judgment appealed from be reversed and a new trial granted, with costs to abide the final award of costs.