The plaintiffs claim title to the property contracted to be sold under a judgment in a partition suit between the children and heirs at law of Frederick Schwab, deceased, who owned the property in his lifetime. The defendant objected to the title upon two grounds, only one of which it is necessary to consider. That objection was that certain grandchildren of Frederick Schwab, who had contingent interests in the property under the will of then* grandfather, were not made parties to the partition suit and that their interests were consequently not cut off.
Frederick Schwab by his will, executed in 1891, gave all of his real and personal property to his wife for life or so long as she remained his widow. In case of her remarriage he gave her a life estate in one piece of property. He also provided that in case of such remarriage his children should each be paid the sum of $2,000, the children of a deceased child taking the legacy which the parent would have taken if living.
The 5th clause, under which the present contest arises, reads as follows: “After my youngest child shall have arrived at full age, I direct that the residue of my said estate be divided, share and share alike, among my children then living and such of my children as may have died leaving issue, such child’s share shall go to his or her respective issue.” To the executrices, consisting of the plaintiff Louisa Adami and another daughter, Magdalena Kaiser, was given a power of sale.
The widow, Barbara Schwab, did not remarry, and died on July 18, 1900, and immediately thereafter an action in partition was commenced by Magdalena Kaiser in which all the
The youngest child of Frederick Schwab was Emma Schwab, afterwards Emma Oorrell, who died on November 8, 1905, before she had attained the age of twenty-one years. As has been said, there were ten grandchildren of Frederick Schwab living when the partition suit was begun. Others were born afterwards and before the death of Emma Schwab. Of the children of Frederick Schwab living at the time of his decease two, Michael F. and George, had died prior to the death of the widow, Barbara Schwab, unmarried, intestate and without issue. Of the surviving children living at the time of the death of Barbara Schwab, and at the time of the judgment in the partition suit, one Catherine Hall had died, leaving issue, before the death of Emma Oorrell, born Schwab. Said Emma Oorrell also left a child her surviving. This disposition of his estate made by Frederick Schwab, therefore, was that his widow was given a life estate during her life or widowhood, and expectant estates were given to his children, or the issue of deceased children, who might be living when Emma Schwab, his youngest surviving child, attained the age of twenty-one years, or died before attaining that age. (Coston v. Coston, 118 App. Div. 1.)
There was no devise providing for the devolution of the estate during the period of time which might elapse, and in fact did elapse, between the death of the life tenant and the day upon which the expectant estates were to be vested in possession. As to the intervening period, the testator died intes
In Monarque v. Monarque (supra) the will gave a life estate to testator’s wife, then life estates to each of his four daughters, with remainder to their children. An action for partition was brought by one of the daughters, to which the mother and three other daughters were made parties. No provision was made in. the judgment for the protection of after-born children of the daughters. The court said: “ Nor does the judgment in the partition suit bar the future contingent interests of persons not in esse. A judgment and sale in partition may conclude contingent interests of persons not in being, but this is only in cases where the judgment provides for and protects such interests by substituting the fund derived from the sale of the land in place of the land, and preserving it to the extent necessary to satisfy such interests as they arise.”
In McArthur v. Scott (113 U. S. 340, 392), cited with approval in Downey v. Seib (185 N. Y. 427, 433), it was said: “ In every case there must be such parties before the court as to insure a fair trial of the issue in behalf of all.” In that case, as in this, the parents of the children sought to be bound had been parties to the action. Their interests, however, were not identical with but rather in hostility to those of the children. So they are in the present case, for the parties to the partition action claimed the absolute title to the property, which was clearly inconsistent with the existence of valid expectant estates in their children.
The conclusion is inevitable, therefore, that the partition judgment under which the plaintiffs claim title was not binding upon and does not conclude the children of Catherine Hall and Emma Correll.
The defects in the title above pointed out could not be cured upon a new trial. The judgment appealed from will, therefore, be reversed and judgment entered in favor of the defendant as prayed for in the answer, with costs to defendant in all courts. A decision, including findings of fact and conclusions of law, and the judgment to be entered thereon, may be settled on notice.
Ingraham, P. J., McLaughlin and Laughlin, JJ., concurred.
Judgment reversed and judgment ordered for defendant as directed in opinion, with costs in all courts. Order to be settled on notice.