#### John Eakin, Plaintiff, *v.*Diederick Knabe et al., Defendants.

(Supreme Court, New York Trial Term,

April, 1900.)

1. Will — Words of general description not cut down by subsequent words of particular description.

A will providing: “ I give and bequeath all my right, title and interest in the property * * * in the city of New York, coming to me through the will of my grandfather, John Bakin, to my brother Eugene Bakin during his lifetime, and at his death, I order and direct that the said property shall be divided equally among my aunts ”, conveys to the aunts of the testator not only • all that portion of the property which he took under the will of his grandfather but also the portion which he then had as heir at law of his grandfather, the rule applying that the words of general description “ all my right, title and interest ” are not to be limited by the subsequent words of particular description “ coming to me through the will of my grandfather.”

2. Partition — Allowance to tenant in possession who has improved the premises in good faith.

Where partition of premises is sought, a tenant in possession, who has improved them substantially and in good faith, is entitled to be *222compensated therefor, but this should not be put so high as that the co-tenants are “ improved out ” of the premises.

In such case the value of the land without the improvements, the value of the improvements, and that of the use and occupation must be ascertained. If the value of the use is greater than that of the improvements the improving tenant is entitled to nothing; if it is less, it should be deducted from the improvements, 'but in any event, the co-tenants must receive at least that value which the land had before the improvements were made.

Actiobt by tenant in common for partition of real property.

Welch & Daniels, for plaintiff.

Parsons, Shepard *&*Ogden, for defendants.

McAdam, J.

The action is for the partition of certain real property in which the plaintiff claims an interest as tenant in common. He alleges that he inherited this interest from John B. Ealdn, whom he claimed was his father. The plaintiff’s right as the heir-at-law of John B. Ealdn was disputed, and the issue was framed and submitted to the jury for a special finding, as follows: “ Q. Was the plaintiff the only son and legitimate heir of John B. Ealdn, deceased? ” which question the jury properly answered in the affirmative. There remain to be determined the further questions, (1) as to what interest or share the plaintiff is entitled to in the premises, and (2) whether the defendant, who purchased the premises in good faith without notice of the plaintiff’s rights, is to be allowed the value of the improvements made by him upon the premises, and, if so, on what conditions and limitations. *First.*As to the plaintiff’s interest or share in the property. The common source of title is John Ealdn. He died on the 21st day of March, 1847, the owner of the premises in question. He left a will, which was duly admitted to probate, of which the following is a sufficient abstract: “ I give, devise and bequeath to my wife my house and premises situated at the comer of Hester and Centre streets, in the city of Hew York (being the premises in question) * * * to have, hold, use, occupy and enjoy during the full end and term of her natural life, and after her death I give and devise the south part thereof, to-wit, that part being south of the south stairway leading to the rooms which I now occupy, to my son William, to have *223and to hold the same subject to the charge thereon hereinafter mentioned, for and during the full end and term of his natural life, and after his death I give and devise the same to his lawful issue and to their heirs and assigns forever; and the other part of the aforesaid house and premises, to-wit, that part thereof lying to the north of the aforesaid stairway, I devise and bequeath to my son John, to have and to hold the same unto him subject to the charge thereon hereinafter declared, for and during the full end and term of his natural life, and after his death, I give and devise the same to his lawful issue and to their heirs and assigns forever. Upon the death of my said wife, I give and bequeath to my three daughters <$600 each.” These legacies to the three daughters have been paid, and they constituted the charge subject to which the testator’s sons took their interests in the property. Sarah Eakin, the widow of the testator, died April 5, 1856, whereupon the estates in remainder took effect. John Eakin, to whom was given a life estate in the north half, died in 1852, before his mother, and without issue. For this contingency the will made no provision. Upon the widow’s death, therefore, this part of the property passed by inheritance to the *testator’s*children, William Eakin (who had the life estate in the south half), Mrs. Mather and Mrs. Bard, each of whom thereby became seized of one undivided third of the north half. William Eakin died in 1879, intestate, and his share in the. north half, to-wit, one-third, and the fee of the south half passed upon his death to his three children, John B. Eakin, Eugene Eakin and Edwin Eakin. John B. Ealdn died in 1879; Eugene died in 1881, and Edwin in 3882. The plaintiff, son of said John B. Eakin, was born in 1876. Upon the death of John B. Eakin, his share, to-wit: one-third of the south half and one-ninth of the north half, passed to the plaintiff by inheritance. At the time of their deaths, Eugene Eakin and Edwin Eakin were each seized as heir--at-law of their grandfather, the original testator, of one-ninth of the north half; they were also each seized as devisees of their grandfather, John Ealdn, of one-third of the south half. Their "wills were alike. *3ititatis mutandis,*they were as follows, taking Edwin Eakin’s will as a specimen. He provided: *“1*give and bequeath all my right, title and interest in the property situated on the northeast corner of Centre and Hester streets, in the city of New York, coming to me through the will of my grandfather, *224John Eakin, to my brother Eugene Eakin during his lifetime, and at his death, I order and direct that the said property shall be divided equally between my aunts Margaret Mather, now living in Providence, Bhode Island, and Sarah Jane Bard, now living in the town of Mt. Pleasant, Westchester county, Mew York, or to their heirs or assigns.” The question presented is, whether these wills operated only upon that portion of the property which the testators respectively took under the will of their grandfather, John Eakin, by virtue of the limitation to the issue of their father, William; or whether they operated upon all the interest which the testators had respectively in the property in question. If each testator had used the words “ I give all the right, title and interest in property which came to me through the will of my grandfather,” there might be sbme good reason for limiting the operation of the will to the estate which the testator had by devise from his grandfather and excluding the interest which he took as heir-at-law. But the words which he actually used bear a very different signification. They constitute a gift of “ all my right, title and interest in the property,” and there is nothing to limit their operation to the right, title and interest of the testator, however derived, except the words “ coming to me through the will of my grandfather, John Eakin.” Those words follow a description of the property, and apparently refer to it, and do not qualify the prior words “ all my right, title and interest.” To hold that they do qualify the words *“*right, title and interest,” would be to make the testators die intestate as to a portion of the interest which they had in that property, and such a construction will not be indulged in unless the words of the will mainly compel it. Vernon v. Vernon, 53 N. Y. 351, 361 ; Riker v. Cornwell, 113 id. 115, 124 ; Lamb v. Lamb, 131 id. 227 ; Schult v. Moll, 132 id. 127 ; Thomas v. Snyder, 43 Hun, 14 ; Chadwick v. Wilson, 73 id. 488 ; Matter of Stone, 15 Misc. Rep. 317 ; Haight v. Pine, 3 App. Div. 434, 439 ; 29 Am. *&*Eng. Ency. of Law, 354. As was said in James v. Pruden, 14 Ohio St. 253, “ It very seldom happens, that a man, who goes to the trouble of making a will, Intends to die intestate, as to any part of the property that he may own at the time of his death.” The language of the wills does not compel a construction which would make the testators die intestate as to any interest they had in the property. In this respect the manifest intention of the testators discerned *225through the will, as applied to the subject-matter and the surrounding circumstances, must control. Schouler Wills (2d ed.), § 466. A clear gift or devise is not to be cut down by anything which does not with reasonable certainty indicate an intention to cut it down. 29 Am. *&*Eng. Ency. of Law, 369. Words of general description are not to be limited by a subsequent attempt at a particular description. Schouler Wills (2d ed.), § 474. It must, therefore, be held that Eugene and Edwin devised the whole of the interest which they had in the property in question to their aunts, and the plaintiff is entitled to one-ninth only in the north half and to one-third in the south half. *Second.*Having settled the interest or share of the plaintiff in the property, the next question is as to the right of the defendant to have compensation out of the *mesne*profits or the proceeds of the sale for the improvements and repairs which he has put upon the property. In an action of partition the equitable right of an improving tenant is recognized, at all events in cases in which the other tenants seek the partition. It rests on the motto that “ he who seeks equity must do equity.” This was decided in the case of Ford v. Knapp, 102 N. Y. 135, which was an action brought by a cotenant out of actual occupation, asking the aid of a court of equity for partition against a cotenant who had made improvements on the property. The court said: “The courts below have denied to the defendants any allowance, either for repairs or improvements. Practically they held that the defendants were foolish and the plaintiffs entitled to a dividend out of that folly, and so that the money of the former must go into the pockets of the latter. If this be true, the situation of the defendants was a hard one, though without their fault. They owned an undivided half of the property and that certainly was no sin. *_ * * Those courts, almost, if not quite, without exception, have recognized the rule that a co-tenant asking their aid for a partition against an owner who has made improvements upon the property is entitled to relief only upon condition that any equities thereby arising shall be taken into account, and that in such case, where actual partition is made and it is possible so to do, the improving tenant will be awarded the portion of the land upon which the improvements have been made. This relief is administered, not upon the ground that the improving tenant who acts without the agreement or assent of the other owners gains a lien upon the *226property for Ms advances, but stands upon the proposition that one who seeks equity must do equity, and that the tenant out of the actual occupation who asks a court of equity to award him partition is entitled to relief only upon condition that the equitable rights of Ms co-tenants shall be respected.” See, also, Cosgriff v. Foss, 152 N. Y. 104; McGillis v. McGillis, 154 id. 548. “ Courts of equity have not confined the doctrine of compensation or liens for repairs or improvements to cases of agreement or of joint purchases; they have extended it to other cases where the party maMng the repairs and improvements has acted *bona fide*and innocently, and there has been a substantial benefit conferred upon the owner so that, *ex cequa et bona,*he ought to pay for such benefits.” 2 Story Eq. Jur., § 1237. In Ford v. Knapp, *supra,*it was further held that in case the property should be soM in partition, upon a division of the proceeds, the equitable ■ rights of the improving tenant should be recognized and an accounting had. See, also, Town v. Needham, 3 Paige, 545 ; Jones v. Duerk, 25 App. Div. 551. The plaintiff concedes that the defendant, about the year 1894, made, in good faith, certain valuable improvements on the property, by way of alterations and repairs to the buildings thereon, for which some compensation ought on eqmtable principles to be made, but claims that the defendant having been in the possession of the premises since 1890, and received the rents and profits thereof up to this time, such improvements should be offset only against the rents and profits; in other words, that the plaintiff, with a vested interest in the property, should not in whole or in part be “ improved out of the premises.” In Clapp v. Nichols, 31 App. Div. 531, the court said: “But the claim of the appellant is much too broad. In doing justice to her, care must be taken not to improve her co-tenants out of their rightful share of the property. So, also, she must be charged with the fair and reasonable value of her exclusive use and occupation of the portion which belonged to the other owners. The value of the land, without the improvements. should be ascertained, and the value of the improvements. The value of the appellant’s use and occupation should also be determined. If this exceeds the value of her improvements, the appellant will be entitled to nothing by reason thereof. If it is less, it should be deducted from the amount representing the improvements^ and the balance should be declared a first lien on *227the proceeds of the sale; except that such lien should not he effective to reduce her co-tenants’ share in the proceeds to a smaller sum than the ascertained value of their interest in the land, exclusive of the improvements. In other words, each of the defendant’s co-tenants must receive the full value' of his land as though the defendant had never occupied it at all, and he must also receive the fair rental value thereof, reckoned for the period of her occupancy. If, after these payments have been made, the proceeds of the sale exceed the value of the defendant’s one-sixth of the premises, the excess will undoubtedly be due to the existence of the improvements, and it is only equitable, in view of the peculiar facts attending the development of the property held under this defective title, that such excess should go to the party by whom the improvements were made. This disposition of the equities of the case restores to the other tenants all their rights, and leaves them unharmed by anything which the defendant has done, while at the same time it prevents them from making any profit of her innocent mistake.” Before rendering judgment, a reference will be directed to hear and determine: *First.*The value of the premises irrespective of the improvements and repairs made by the defendant. *Second.*The value of such improvements and repairs. *Third.*The value of the use and occupation of the premises by the defendant, and the amount of the rents and profits received by him. And the referee will take and state an account between the parties on the basis of this decision for the information of the court; the form of the interlocutory judgment and the question of costs to be determined on the .coming in of the referee’s report.

Ordered accordingly.