How the parties to this partition action succeeded to the title of Mary Devlin does not aj- °ar, but it seems to be assumed that they succeeded to her title, and that the referee could convey the estate which Mary Devlin acquired by the deed executed to her October 13,1877, by the referee in the foreclosure action. By the will of Thomas McConnell, his widow took the use of all of the testator’s property until his eldest son, Thomas, became of age, when he became entitled to one-fourth of the estate, subject to the dower interest of his mother in that fourth; and, after that event, she was entitled to a life estate in the remaining three-fourths, and the remainder on her death passed under the will to the testator’s three youngest children, to be divided equally among them, or among the survivors of them. On the 7th of July, 1873, Thomas McConnell, having become 21 years of age, received Ms share of Ms father’s estate, and quitclaimed all of Ms interest in No. 235 West Twenty-Ninth street and No. 441 West Forty-Fifth street^ by a deed dated and recorded on that date. The life estate of the widow in this lot has been cut off by her conveyance, and the question is whether the estate of the three minor children was cut off by the judgment in foreclosure. When these infants became of age does not appear, but it is shown that all of them were under 14 years of age March 14,1877. Assuming that the eldest was then 13, the second 12, and the youngest 11 years of age, the youngest would become 21 years of age in 1887. Whether we are right in tMs assumption is not disclosed by the record, and the youngest may have reached majority at a much later date. By reference to the power of sale contained in the fourth clause of the will of Thomas McConnell, it will be seen that the power of the executrix to mortgage or sell is solely for the purpose of carrying out the provisions of the will, and she was given no power to sell or mortgage for any other purpose. By the record in the foreclosure- action, it appears that the mortgage which she executed to Charles Devlin, June 24, 1873, on No. 441 West Forty-Fifth street, was given as collateral security for the payment of her personal bond for $6,000, which she gave as part of the consideration of her personal purchase of No. 235 West Twenty-Ninth street. The proposition that the will gave her no power to mortgage this property for her individual benefit is so plain that it does not need the support of precedent. She could neither divest nor incumber the remainder, devised to her cMldren, for her personal use.
*856But it is urged that, these infants having been made parties to the action for the foreclosure of the mortgage, and having appeared therein by a guardian ad litem, their remainders were cut off by the judgment. This proposition is not sustained. The complaint and the amended complaint in the foreclosure action contain the following averment:
“And the plaintiff further shows that he is informed and believes that Thomas McConnell, Hugh McConnell, Ann McConnell, and John McConnell, Luke Molloy, Rensselaer B. Winchill, John MeCahill, have, or claim to have, some interest in or lien upon the said mortgaged premises, or some part thereof, which interest or lien, if any, has accrued subsequently to the lien of the said mortgage, and is subordinate thereto.”
It is not alleged in the complaint that the children of the testator acquired any interest in the property as devisees under the will of their father; and it is also alleged that the mortgage on No. 441 West Forty-Fifth street was given as collateral security for the personal bond of Ann McConnell. Under such a complaint, the rights acquired by the three infants under the will of their father which were paramount to this mortgage were not cut off by the judgment. Lewis v. Smith, 9 N. Y. 502; Frost v. Koon, 30 N. Y. 428; Rathbone v. Hooney, 58 N. Y. 463; Bank v. Goldman, 75 N. Y. 127.
It is very clear that the judgment in foreclosure is not on its face a bar to the rights of the infant heirs. It is asserted in behalf of the respondents that the affidavits filed on this motion show.that the avails of these two mortgages were applied by the executrix for the benefit of the estate of the testator, and consequently for the benefit of the infants. We do not so construe them. No part of the avails of the mortgage on No. 441 West Forty-Fifth street was used by the executrix for the' benefit of the estate, but, had it been distinctly averred in the affidavits that the avails of this mortgage were applied by her for the benefit of the estate, such averment would not be evidence against the heirs in an action which they may hereafter bring to recover their supposed interest in the estate. In case an action should be brought by the heirs, the owners of the lot might or might not be able to secure the attendance of the affiants as witnesses; and, in case they should testify, the issue of fact might or might not be found in accordance with their testimony. We do not declare the title derived from Mary Devlin good or bad, for there may be circumstances not disclosed in this record which may estop the heirs from successfully maintaining a claim to the property; but we do hold that the title is so doubtful and uncertain, resting, according to the respondents’ theory, upon oral evidence, that the purchaser ought not to be compelled to perform his contract.
The order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs and disbursements.
VAN BRUNT, P. J. I concur. The guardian ad litem seems to have appeared as attorney for the defendant Ann McConnell, having an interest adverse to the infants, and thus the infants had no protection whatever in the foreclosure action.
PARKER, J., concurs.