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(178 N.Y.S.)

ders and impose such terms as shall promote the objects of this act and be equitable to all parties." Section 14.

It seems to me, in view of these provisions, that the Legislature intended a somewhat liberal construction of the provisions of the statute to accomplish the end in view. I apprehend, however, that this would not justify a noncompliance by the commissioners with jurisdictional requirements; but it seems to me that all of the alleged defects pointed out by the plaintiffs were such as might have been, during the course of the proceeding itself, amended upon being brought to the attention of the court by any party claiming to be prejudiced or affected thereby. By failing so to do the parties in my opinion waived such defects. These defects were therefore mere irregularities, and not jurisdictional. None of the grounds of objection now asserted were laid as grounds for Whitney's appeal to the County Court from the final determination of the commissioners, although the statute required a statement of the grounds upon which the appeal was based (section 10), and it was held by the County Court upon such appeal that no objection not stated in the grounds filed would be considered by the court. See opinion of Mills, C. J., filed. The proceeding was begun, Whitney appeared at every stage thereof, contested it bitterly, and a final determination was made, was approved by the County Court, and confirmed, in spite of opposition by counsel appearing for Whitney; an appeal was taken to the General Term of the Supreme Court, and the order of the County Court affirmed. It seems to me quite clear that the commissioners, the County Court, and the General Term acquired jurisdiction of the parties and of the subject-matter, and that Whitney and his successors in interest, the plaintiffs here, were therefore concluded by the final order in the proceeding. To hold otherwise would be in my opinion in effect to review and reverse the final determination of the County Court in a special proceeding of which it had jurisdiction, both of the parties and subject-matter. I think this court has no such power. Certainly it has no right or authority to set aside or reverse the orders and decrees of the former General Term. I therefore hold that the certificate of sale was valid, and it only remains to consider the rights of the parties thereunder.

[19] The statute under which it was made is somewhat unique. It provides that such certificate shall authorize and empower the purchaser therein named, or his assignee, at the times mentioned in the statute, "to enter into and take possession of the said land so sold and to use, occupy and enjoy the same with the rights of a life tenant during the term for which he shall have purchased the same," unless redeemed. The certificate, therefore, gives the defendants and their successors in interest a right to the possession and use of the land for the balance of the term of the certificate, 999 years, with the same rights and privileges which a life tenant would have enjoyed, and at the termination of this estate the land reverts to plaintiffs' successors in interest.

[20] The rights of the parties to the award are similar. Defendant Considine Investing Company is entitled to the income for the remainder of the term, and the corpus of the award then goes to plaintiffs' successors in interest. The award must therefore be paid into court, unless defendant Considine Investing Company consents to accept a gross sum in lieu of its interest, in which event a computation may be made of the sums to which plaintiffs and defendant Considine Investing Company are respectively entitled.

Decision and judgment may be settled on notice.

(108 Misc. Rep. 705)

NELSON et al. v. NELSON et al.

(Supreme Court, Special Term, Westchester County. September 20, 1919.) 1. STATUTES 239-IN DEROGATION OF COMMON LAW STRICTLY CONSTRUED. A statute in derogation of the common law must be strictly construed. 2. DESCENT AND DISTRIBUTION 14 DISTRIBUTION OF PROPERTY COMING TO INTESTATE FROM FATHER BY DEVISE, GIFT, OR DESCENT.

Under Decedent Estate Law, § 88, providing, if there is no heir entitled to take under preceding sections, the inheritance, if it shall have come to the intestate on the part of the father, shall descend in certain specified ways, the property must have been an inheritance when it came to the intestate, and must have come to intestate on the part of intestate's father directly, either by devise, gift, or descent.

3. DESCENT AND DISTRIBUTION 12-PURCHASE AT PARTITION SALE OF FATHER'S ESTATE VESTS TITLE IN DAUGHTER BY PURCHASE AND NOT BY DESCENT.

Where a daughter inherited from her father as tenant in common with her brother and others, and her brother bid in the land on partition sale, the deed being made to him and her, they thereby becoming seized in fee as tenants in common of the entire property, the brother's share of which, on his death intestate, descended to her, no part of the land descended to her from her father, within the contemplation of Decedent Estate Law, § 88, so as to exclude the relatives of her mother from sharing therein on her death intestate, since the effect of the partition was to vest her undivided half in her by purchase, and not by descent.

Action for partition by William H. Nelson and another againsť George H. Nelson and others. Interlocutory judgment directed in accordance with the opinion.

Ticknor & Ticknor, of Mt. Kisco, for plaintiffs.
P. A. Anderson, of Peekskill, for defendant Louis Dean and others.
Thomas F. Keogh, of New York City, for defendant Newey.
Geller, Rolston & Horan, of New York City, for special guardian.

YOUNG, J. This action is brought for the partition of certain real property, and involves a dispute as to the respective shares of the several tenants in common. The property was formerly owned by John B. Sarles and Reuben B. Sarles, his brother, as tenants in common. John B. Sarles married Antoinette (or Annette) Waters. He died in 1885, seized of a half interest in the property, and leaving William Henry and Mary Ella Sarles, his children and heirs at law, who succeeded to his one-half interest in the property. Reuben died in December, 1900, intestate and without issue, and his orehalf interest in the property descended one-half to his sister Prudy

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(178 N.Y.S.)

Nelson, and the remaining half of his interest to William Henry and Mary Ella Sarles.

In 1901 a partition suit was brought; the property was sold thereunder and bid in by William Henry Sarles, but the referee's deed was made to William Henry and Mary Ella Sarles, so that they became seized in fee of the entire property as tenants in common, each owning a one-half interest. William Henry Sarles died intestate and without issue on February 4, 1919, and his one-half interest in the property thereupon descended to his sister, Mary Ella Sarles, so that when she died on March 1, 1919, she was seized in fee of the entire property.

Antoinette Waters, the wife of John B. Sarles, the father of Mary Ella, had two sisters, Janie Marshall and Almira Wright. Janie Marshall died leaving one child, Laura Marshall, who also died before Mary Ella Sarles. Almira Wright died leaving four children-Edward Wright, Bell Hoag, Alice Curry, and Flora Dean. Edward Wright died intestate leaving a daughter, Laura Newey. Bell Hoag also died intestate leaving two children-Wright Hoag and Flora Hoag. Alice Curry died intestate and without issue, and Flora Dean died intestate leaving two children-Louis Dean and Flora Dean.

The controversy between the parties arises under the provisions of section 88 of the Decedent Estate Law (Consol. Laws, c. 13), which, so far as material, provides as follows:

"If there be no heir entitled to take, under either of the preceding sections, the inheritance, if it shall have come to the intestate on the part of the father, shall descend:

"1. To the brothers and sisters of the father of the intestate in equal shares, if all be living.

"2. If any be living, and any shall have died, leaving issue, to such brothers and sisters as shall be living and to the descendants of such as shall have died.

"3. If all such brothers and sisters shall have died, to their descendants. "4. If there be no such brothers or sisters of such father, nor any descendants of such brothers or sisters, to the brothers and sisters of the mother of the intestate, and to the descendants of such as shall have died, or if all have died, to their descendants. But, if the inheritance shall have come to the intestate on the part of his mother, it shall descend to her brothers and sisters and their descendants; and if there be none, to the brothers and sisters of the father and their descendants, in the manner aforesaid. If the inheritance has not come to the intestate on the part of either father or mother, it shall descend to the brothers and sisters both of the father and mother of the intestate, and their descendants in the same manner. all cases mentioned in this section the inheritance shall descend to the brothers and sisters of the intestate's father or mother, as the case may be, or to their descendants in like manner as if they had been the brothers and sisters of the intestate."

In

The expression "where the inheritance shall come to the intestate on the part of the father," or "mother," as the case may be, is defined to include every case where the inheritance shall have come to the intestate by devise, gift, or descent from the parent referred to or from any relative of the blood of such parent. Decedent Estate Law, § 80. It has also been held that, where an intestate dies seized of land which he has inherited from his brother, such land will not be regarded as having come to the estate on the part of his father, because of the fact that the intestate's brother inherited the land from his father, as this section does not require that the estate be traced back further than the immediate ancestor of the person last seized. Hyatt v. Pugsley, 33 Barb. 373.

178 N.Y.S.-6

The plaintiff and the defendants George and Henry Nelson are descendants of Prudy K. Nelson, a sister of the father of Mary Ella Sarles. The defendants Laura Newey, Wright Hoag, Flora Hoag, Louis Dean, and Flora Dean are descendants of Almira Wright, a sister of the mother of Mary Ella Sarles. It is contended by plaintiff and the guardian ad litem for the defendants Nelson that a portion of the property came to the intestate on the part of her father, and that therefore the relatives on the mother's side are excluded from any share in that portion. The other parties to the action contend that by reason of the partition suit the intestate acquired a one-half interest by purchase, and not by descent from her father, and that the other one-half interest she acquired by descent from her brother, so that none of the property came to her on the part of her father, and that by virtue of the statute above quoted the mother's relatives are entitled to share in the property. As will be seen, therefore, the case turns upon the question as to the effect of the partition suit.

I do not think the cases cited by plaintiff's counsel support his contention. The decision in Hartman's Estate, 4 Rawle (Pa.) 39, rested upon the fact that a distributee purchased the property at an appraised value pursuant to the provisions of a codicil giving him the privilege, and he was held to have taken under the will as a gratuitous devisee. But the law of Pennsylvania seems to be that where a distributee elects to take the land, and it is not sold as provided by the will, he takes a new acquisition. Simpson v. Kelso, 8 Watts (Pa.) 247; Burr v. Sim, 1 Whart. (Pa.) 252, 29 Am. Dec. 48.

Brower v. Hunt, 18 Ohio St. 311, merely decides that where, pursuant to directions in a father's will, an actual partition of lands was made by commissioners among his children, two of whom thereafter exchanged the parcels allotted to them by conveyance, reciting, but actually without any, money consideration, and one of them thereafter died intestate, the parcel conveyed to him in this exchange was acquired by purchase and not by descent. It has now been definitely decided in Ohio, however, that a purchaser at a sheriff's sale in partition takes by purchase only the shares of his cotenants, and that the partition does not change the status of his own share, which he still holds by descent. Lawson v. Townley, 90 Ohio St. 67, 106 Ν. Ε. 780.

The Ohio statutes relating to partition are somewhat different from our own. In a partition proceeding in that state commissioners are appointed, who make actual partition, if possible. If this cannot be done, they report the fact, with the appraised value of the property, and any of the parties may elect to take the land at such value upon payment to the other parties of their proportion. If no such election is made, an order of sale to the sheriff is issued by the court and a public sale is had; and where a party purchases he receipts to the sheriff for his own share of the purchase money and pays the balance in cash.

In the case last cited the court did not follow or comment upon the rule intimated in Freeman v. Allen, 17 Ohio St. 527. In that case the

(178 N.Y.S.)

court distinguished between the election of a party to take the property at its appraised value and his purchase at public sale, saying:

"A plain distinction is made between the two cases in the amount of money to be paid. In the case of a sale-which may be to any one-full payment is required. But in case of an election-which can be made by parties only-payment of the amount due to the other parties is all that is required. The theory of the statute would seem to be that upon a sale the entire title may pass to the purchaser, but that on an election by a party only so much passes as is not already vested in him; or, in other words, that the election operates, in consideration of money paid, to extinguish the title of all parties except that of the party taking it. The party who elects to take the land is thus left with a title cast upon him by law to the extent of his inheritance, and with the residue of the title to the full estate perfected by his own act. It follows that his title comes in part by descent, and in part by purchase."

In Indiana, however, it has been held that a widow who purchases at a commissioner's sale in partition proceedings land of which her husband died seized, paying no money, but assuming a mortgage and receipting for her distributive share of her deceased husband's estate, takes by purchase and not by descent. Spencer v. McGanagle, 107 Ind. 410, 8 N. E. 266.

[1, 2] So far as I have been able to learn, Ohio and Indiana are the only states whose courts have passed upon the specific question involved in the case at bar. Decisions in other states are, of course, dependent largely upon their statutes and the policy of their law. How far the courts of this state will follow them depends upon the extent to which rulings coincide with the policy of our own law. In determining the policy in this case, we may start with the proposition that the statute involved is in derogation of the common law, and must therefore be strictly construed. The property must have been an inheritance when it came to the intestate, and it must have come to her on the part of her father directly, either by devise, gift, or descent. Kidney v. Waite, 178 App. Div. 260, 165 N. Y. Supp. 671.

In Champlin v. Baldwin, 1 Paige, 562, it was held that property did not come to a daughter by descent from her mother, where it was purchased for her by her father with moneys belonging to her deceased mother. In Nicholson v. Halsey, 1 Johns. Ch. 417, a daughter was held to have acquired a legal estate by purchase to lands for which her father had paid, but received no conveyance, and which were thereafter conveyed to her by one who had taken title thereto after her father's death in trust for her benefit.

It has also been held in this state that, where actual partition of land is made between heirs, the character of the part set off to each heir is not changed by reason of the partition, and that the estate in such parcels is derived, not from the decree, but by descent. Adams v. Smith, 20 Abb. N. C. 60; Conkling v. Brown, 8 Abb. Prac. (N. S.) 345.

These decisions, while they do not involve the precise question here presented, illustrate how closely the courts have construed this statute. The question is purely legal, and its solution does not depend upon equitable considerations. In the language of Lord Mansfield, quoted

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