Baernathan v. Hendricks

• Decision Date: 29 October 1895
• Citation: 147 N.Y. 348,41 N.E. 702
• Parties: In re BAER. NATHAN et al. v. HENDRICKS et al.
• Court: New York Court of Appeals Court of Appeals

147 N.Y. 348

41 N.E. 702

In re BAER.NATHAN et al.

v.HENDRICKS et al.

Court of Appeals of New York.

Oct. 29, 1895.

Appeal from supreme court, general term, First department.

Action by Frances Nathan and others against Edmund Hendricks and others for the construction of a will, distribution and partition. On motion of Morris B. Baer, purchaser at a sale made under order of court, to be relieved from his purchase for defect of title. From an affirmance (34 N. Y. Supp. 1016) by the general term of an order of the special term denying his motion, he appeals. Affirmed.

Thomas W. Butts, for appellant.

Benjamin N. Cardozo, for respondents.

O'BRIEN, J.

On the 6th of March, 1895, pursuant to the judgment in an action of partition, the referce offered for sale the premises in question, No. 27 Mercer street, in the city of New York, and the appellant in this proceeding, as the highest bidder, became the purchaser. Subsequently he petitioned the court to relieve him from his bid upon the sole ground that the title under the judgment resulting in the sale was not a marketable one. The courts below have denied his application, thus holding that the title offered is good; and that is the only question presented by this appeal.

It is admitted that Charlotte Gomez, who died December 1, 1849, leaving a will, which was admitted to probate in that year, was, at the time of her death, seised and possessed of this property in fee. The defect which the purchaser claims to exist in the title under the referee's sale arises under this will and the judgment in partition. The property in question was disposed of by the residuary clause of the will, wherein the testatrix devised and bequeathed the same to her executors, as trustees, in trust for the use of her daughter Emeline, with directions to pay over to her the rents, income, or profits thereof, and, in case of her death, leaving issue, to convey the remainder to such child or children or his or her heirs. This provision of the will was modified by a subsequent clause, in which it was directed that, in case of the death of Emeline without children or their issue, her descendants, but leaving her sister Matilda surviving, then, and in that case, the trustees were to apply the rents, income, and profits of the property in question so held by them in trust to the use, benefit, and support of Matilda during her natural life, and upon her death to convey the remainder ‘to the children and lawful heirs of my brother Harmon Hendricks, deceased, to share and share alike per stirpes.’ The daughter Emeline died intestate, and without issue, March 20, 1885. The daughter Matilda survived her sister for several years, and died December 6, 1893, and so the trust then expired, and the estate in remainder passed to such descendants of Harmon Hendricks as were contemplated by the will. Harmon was the brother of the testatrix, but died some time before the will was made, leaving 10 children surviving, and who were alive at the death of their aunt, the testatrix; but all of them died before Emeline, to whom the first life estate was devised. These children, or some of them, left wills, under which any interest in the real estate in question which vested in them upon the death of the testatrix would pass. In the partition action none of the devisees of these children were made parties, but all persons who answered to the description of the living heirs of Harmon Hendricks at the date of the death of Matilda, on December 6, 1893, were brought in and are bound by the judgment.

The question, therefore, is whether the remainder vested upon the death of Charlotte Gomez, the testatrix, in such of the children or descendants of her brother, Harmon Hendricks, as were then living, or only in such descendants living at the termination of the life estates to the two daughters of the deceased. If the remainder vested upon the death of the testatrix, then the contention of the petitioner as to defects in the title can be sustained, but not if it was contingent and to vest only in the future in the surviving children or heirs of the brother, since all such persons were made parties to the partition suit. The trust created by the provisions of the will referred to embraced personal as well as real property, and the contention of the purchaser is that the testatrix contemplated a division and distribution of the remainder at some remote period in the future, not only among the descendants of her brother then living, but also among the devisees and legatees of such as had died in the meantime, or their heirs or representatives; thus bringing into the class persons who are not of her blood, and who were wholly unknown to her in her lifetime. The duty which she imposed upon her trustees was clear and simple, and that was to distribute the remainder, when the trust terminated by the death of the life tenants, among the...