Smith v. Secor

• Decision Date: 16 December 1898
• Citation: 157 N.Y. 402,52 N.E. 179
• Parties: SMITH v. SECOR et al.
• Court: New York Court of Appeals Court of Appeals

157 N.Y. 402

52 N.E. 179

SMITH

v.SECOR et al.

Court of Appeals of New York.

Dec. 16, 1898.

Appeal from supreme court, appellate division, First department.

Motion by Irving Bacharch to be relieved from his purchase at a partition sale ordered in an action for partition between Mary Elizabeth Smith against Rienzi A. Secor and others. An order of the special term denying the motion was reversed by the appellate term (52 N. Y. Supp. 562, 1150), and the plaintiff Mary Elizabeth Smith appeals. Affirmed.

Appeal from an order of the appellate division of the supreme court in the First judicial department, reversing an order of the special term refusing to relieve Irving Bachrach from his purchase of certain premises upon a sale thereof in partition. Mary A. Secor died June 14, 1894, seised and possessed of valuable real estate in the city of New York, the residuum of which, by her will, she divided into seven parts, and devised six thereof to her executors in trust, to hold one for each of her children. She provided that the trust should continue during the lives of her daughter Adelle and her son Rienzi, and directed the trustees to rent all of said real estate during the continuance of the trust. She required the income of said six-sevenths to be divided equally among her six children, and directed what disposition should be made of the income on the death of any child during the period of the trust. Upon the death of Adelle and Rienzi the trust was to terminate, and she directed that the trustees should then sell the property, and divide the net proceeds ‘equally among all of my said six children then living * * * and the descendants of such as may then be dead.’ If there was no descendant of a deceased child, its share was to be equally distributed among her children then living. Charles A. Secor, one of her children, died before herself, and this action was brought to partition an undivided seventh of the residuum of the real estate upon the theory that she died intestate as to the seventh which would have gone to Charles had he lived until the end of the trust. All living persons interested were made parties, but none appeared except certain infants whose guardians ad litem put in the usual general answer. The trustees made no defense. Judgment of partition was taken in the usual form, practically by default, and no provision was made for unknown owners or after-born children. No suggestion or notice appeared in the terms of sale putting purchasers on guard as to the title that they would get. Irving Bachrach purchased at the sale, but, upon being advised by counsel that a good and marketable title could not be given by the referee's deed pursuant to said judgment, he moved at special term to be relieved from his purchase. The special term denied the motion upon the ground that the testatrix died intestate with respect to the share to be held in trust for her son Charles, and upon the further ground that the final judgment confirming the referee's report and the sale was a full protection to the purchaser. Upon appeal the appellate division held ‘that it was the evident intention of the testatrix that the trust was to continue during the lives of her daughter Adelle and her son Rienzi, independent of the lives of those children whom she had designated as the ones who should receive the income of the trust during its continuance’; that she ‘did not die intestate as to the share of a child designated to receive a portion of the income of the trust estate who had died before’ herself; ‘that such share constituted a portion of the trust estate, and that the income thereof, under the provisions of the Revised Statutes (1 Rev. St. p. 726, § 40), devolved on the persons presumptively entitled to the next eventual estate; that, as the final distribution was to be made among those children who survived the trust term, and the descendants of those who had died during that period, a purchaser at a sale in partition, taking place prior to the expiration of the trust term, would not be required to take title, as the judgment would not bind the unborn descendants.’ From the order of the appellate division reversing the order of the special term the plaintiff...