(dissenting). Plaintiff and defendant entered into a contract for the sale and purchase of certain lands, of which the premises in controversy constitute a part. Defendant refused performance, assigning as a reason that plaintiff was unable to give him a good and marketable title. Plaintiff’s predecessor in title, Joseph Cudlipp, by his will, admitted to probate in the year 1863, devised such lands as follows:
“Item. The piece of ground owned by me in Westchester county, on Union avenue and Westchester road, I order and direct to be divided into four equal parts or shares,_ lengthwise. The part or share fronting on the Westchester road I give, devise, and bequeath to my son, Joseph; the part next adjoining, to my daughter Annie; the part next adjoining, to my daughter Sa--ah; and the part next adjoining, to my daughter Elizabeth,—the land so devised to be held by them, respectively, during their natural lives, and upon then-deaths, respectively, to their respective children, forever; subject, however, to the dower interest of my said wife.”
Thereafter the legislature, by chapter 479 of the Laws of 1872, enacted that, on the application of the four life tenants and their lawful issue in being, the supreme court might authorize the sale in fee simple absolute of the lands so devised, or any part or parts thereof, at one time or from time to time, as might be adjudged to be expedient and calculated to promote the interest of those who would be entitled to the lands upon the deaths of the life tenants, according to the provisions of the will, whether in being or not, or whether having a present or contingent interest in the land. It further provided the practice to be adopted by which such matters as should be passed upon by the court should be properly brought before it, for consideration and determination. At the time of the passage of the act, the only persons having an interest in the premises by virtue of the devise who were of full age were the four life tenants. So the legislature, by requiring that the proceedings for the sale should not be had unless upon the petition of the life tenant, did not come in conflict with the decision in *464Powers v. Bergen, 2 N. Y. 358, and Brevoort v. Grace, 53 N. Y. 245, in which, cases it was held that the legislature is without constitutional authority to authorize by special act the sale of private property belonging to adults. The practice required by the statute obviated the difficulty which was presented in Brevoort’s Case; but, while the cases cited supra deny the right of the legislature to authorize the sale of the private property of adults for other than public use without their consent, they determine the law to be that the legislature may, by special statute, authorize a sale of the lands of infants or other incompetents in behalf of whom the legislature acts, because they cannot act for themselves, and this power extends to the future contingent interest of those not in being. The legislature having power to authorize the sale, the manner in which the matter shall be brought to the attention of and passed upon by the courts in determining whether such a condition exists as the legislature had in contemplation in passing the act—to wit, a condition which requires a sale in order to sub-serve the best interests of the infant remainder-men, as well as the future contingent interests of those not in being—is a question which the legislature had full authority to determine. Now, after the passage of the act, proceedings were instituted in the supreme court in conformity with its provisions. The petition set forth the facts which the petitioner alleged show the necessity for a sale, a prayer that the property be sold, and was signed by all the adults having an interest of any kind in the premises. The petition, in stating the reasons for the expediency of the sale, among other things, set forth that the land, which consisted of about 10 acres, was wholly unproductive; that its assessed value was many times greater than at the testator’s death; that the taxes were exceedingly large, and will greatly increase from year to year; that the means of the four life tenants were small; that their children had no property except the interest in the property devised, and, unless sold, the land would become so incumbered by taxes and assessments and sales thereof as to leave the interest of the remainder-men of little or no value. The result of the proceedings was an adjudication by the court that a sale was expedient and calculated to promote the interests of those who would be entitled to the land under the testator’s will, whether in being or not, or having a present or contingent interest. This question the court was authorized to determine, by the statute providing that the proceedings should be instituted; and, the necessary steps having been taken to invest it with jurisdiction as to all of the parties, whether in being or not, its determination was final, and cannot be subjected to collateral attack. Indeed, it is hardly probable that any objection would have been taken but for the existence -if the fact now to bo stated.
By the devise the lands were divided into four equal parts, the use of each one of the parts specified being given to one of his children during life, and, upon death, the fee to his or her children. Now, after the will was admitted to probate, but before the passage of the act- of 1872, supra, the commissioners of taxes and as*465sessments, in pursuance of chapter 841 of the Laws of 1868, laid out streets through such premises, both lengthwise and crosswise,- and duly made and filed maps in conformity therewith. The method adopted by the commissioners in laying out these streets did not conform to the line of division as fixed by the testator, and, as a result, the third part, for instance, which was devised to the use of his daughter Sarah, had no frontage whatever upon a street running lengthwise through the property; while the second part, the use of which was given to the daughter Annie during life, had a frontage upon the street upon both sides, but the lots had but little depth. The result of laying out the streets through the-lands was to increase the value of one of the devised parts moiethan others, and it is claimed that, for such reason, the four parcels-should have been separately sold, so that the parcels deriving the greater advantage from the said improvement should realize, for-the benefit of those interested therein, a proportionately enhanced" sum. The first impression suggested by this statement is that defendant’s contention is somewhat plausible, but a moment’s reflection shows it to be without merit, for the reason tersely and clearly' stated in Ee Field, 131 N. Y. 184, 30 N. E. 48: “The proceeds, which thus take the place of the land, are still to be treated as land, for - the purpose of measuring all rights therein, and their preservation - is secured by requiring them to be paid into court and invested under its direction.” See, also, Kent v. Church of St. Michael, 136 N. Y. 10, 32 N. E. 704. The result of the proceedings and the-sale had thereunder has been to substitute the money, which represents the value of the land, in its place. Ho attempt was made to determine the rights of the several parties therein as between themselves other than the life tenants, and, when the time comes for the distribution of the proceeds of the property among those entitled to it, the court can and will, if properly requested, inquire concerning it, and determine the rights and interests of the several parties.
It is urged that the determination of the gross value of the several life estates, and their payment out of the fund, in the manner authorized by the statute, constitute a fatal defect. Hot so if the position already asserted be sound,—that the intent and legal effect of the statute was to substitute the proceeds of the sale-for the land sold, to be thereafter apportioned according to the rights of the several parties interested,—for the life tenants, in the-aggregate, received no greater sum than would have been awarded’ to them had a division of the fund been made before computing, the value of their respective estates. It may well be that, as between the life tenants, there has not been such a division as should have been made; but, as they are alone interested in such injustice as may have resulted, there is no source from which legal complaint can flow, as they have consented to the basis adopted for distribution, and accepted the payments made thereunder. What proportion of the aggregate amount paid out in satisfaction of the-several life estates shall be borne by each of the four separate es-*466totes must Tbe determined by the court when it comes to adjudicate upon the value of the several interests and decree distribution. That which was done cannot be questioned, because the legislature had power to authorize it, to wit, a sale of the property after a determination by the court that there existed a situation which rendered it expedient and necessary that a sale would be had; and the proceeds, having been paid into court, now stand in the place of the land for which it was paid, and it is of no consequence, so far as the title is concerned, when the court shall undertake to determine the rights of the several parties, nor how it shall be determined. The proceedings having been regular, it is to the fund, and not to the land, that those in whose behalf and interests the sale was made will have to turn in order to secure that which of right belongs to them. Hot only was the procedure adopted in selling the property regular, but it was wise from a business standpoint, for in no other way could so much money have been realized from it. I advise that judgment be entered in favor of the plaintiff for a specific performance, as demanded in the submission, with costs.