#### TUCKER v. TUCKER et al.

(Supreme Court, Appellate Division, Third Department.

November 13, 1907.)

1. Descent and Distribution—Real Property—Interest Acquired by Mother.

Where intestate left a mother, a brother, sisters, and children of a deceased sister, under the express terms of Real Property Law, Laws 1896, p. 619, c. 547, § 285, the mother inherited only a life estate, with • remainder to the other heirs.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 16, Descent and Distribution, §§ 84-90.]

*7142. Deeds—Reservation—Maintenance of Grantor — Effect — Rights of Transferee.

Where a mother conveyed land to her daughter, reserving the right to comfortable maintenance upon the land in the daughter’s family, the daughter’s death did not deprive the mother of the benefit of the reservation, and the reasonable value of her maintenance was an equitable lien or charge enforceable against the land by the mother’s grantee, without regard to her statutory life estate acquired as her daughter’s heir; the equitable charge for maintenance being an incumbrance on the entire property, including the life' estate and remainder.

3. Estoppel—Deed—Covenant of Warranty—After-Acquired Title.

A title subsequently acquired by one who has granted land with covenant of warranty inures to the benefit of the grantee.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 19, Estoppel, §§ 99-107.]

This is an action for the partition of a farm. Phoebe Stover, the original owner, conveyed the farm in 1870 to her daughter, Emma Galusha. The deed contained the following clause: “The said party of the first part hereby reserves to herself the right of her comfortable maintenance upon the within described premises in the family of the said party of the second part during her natural life, and also that the said party of the second part shall not sell or convey the said within described premises during the natural life of the said party of the first part without her consent.” In 1880 Emma Galusha died intestate, leaving as her heirs her mother, said Phoebe Stover, two sisters, a brother, and children of a deceased sister. In 1892 and 1893 two of Emma Galusha’s sisters conveyed their interests in the property to plaintiff’s husband, Aaron S. Tucker, and he subsequently conveyed to plaintiff. Hence her source of title. In 1881 Phoebe Stover executed a quitclaim deed to Daniel Galusha, the husband of her deceased daughter Emma, in form covering the whole property. He paid her $100 in cash, and gave her a mortgage on the property for $800, payable in 16 annual installments of $50 each, without interest. Phoebe Stover died in 1905, at the age of 93 years. In 1888 Daniel Galusha executed a warranty deed of the entire property to James K. Kenyon. Kenyon in 1890 gave a warranty deed back to Galusha’s second wife, and she, in 1893, gave a warranty deed to Samuel Morgan, this appellant. Morgan, as part of the consideration of his purchase, paid a balance due on the above-mentioned mortgage of Phoebe Stover, which at that time had been assigned to plaintiff’s husband. All of the aforesaid deeds were promptly recorded. In 1893, and after the said deed to Morgan, Daniel Galusha acquired by purchase from two of the heirs of Emma Galusha, .deceased, an undivided one-sixth part of the premises, which the interlocutory judgment adjudges to belong to the two children of Galusha, subject to the dower right therein of his widow, Maggie Galusha, he having since died. Said judgment excludes the appellant from all right and interest in and to said premises.

Appeal from Trial Term, Warren County.

Partition action by Mary L. E. Tucker against Aaron S. Tucker, Samuel Morgan, and others. From an interlocutory judgment, defendant Morgan appeals. Reversed, and new trial granted.

Argued before SMITH, P. J:, and CHESTER, COCHRANE, KELLOGG, and SEWELL, JJ.

King & Angel! (H. Prior King, of counsel), for appellant

Rockwood & Salisbury (George R. Salisbury, of counsel), for respondent.

COCHRANE, J.

It is obvious from the foregoing statement that the appellant only has such title to the farm as Mrs. Stover could con*715vey after the death of her daughter, Mrs. Galusha, except as to the undivided one-sixth interest hereafter discussed. Under Real Property Law, Laws 1896, p. 619, c. 547, § 285, Mrs. Stover inherited from Mrs. Galusha only a life estate in the property, with the remainder to the other heirs of the latter. But in the deed from Mrs. Stover to Mrs. Galusha the former reserved the right to her comfortable maintenance on the farm. This right was of a personal character. It was clearly expressed in the deed that such maintenance should be in the family of Mrs. Galusha, and this idea was further emphasized by the provision that the latter should not convey the premises during the life of Mrs. Stover without her consent. When Mrs. Galusha died, such arrangement was no longer capable of execution in the manner contemplated by the parties. That fact, however, did not deprive Mrs. Stover of the benefit of her reservation. She continued to be entitled to her maintenance, and the value thereof was an equitable lien or charge enforceable against the property. Borst v. Crommie, 19 Hun, 209; Loomis v. Loomis, *35*Barb. 624; Tolley v. Greene, 2 Sandf. Ch. 91. The right of maintenance reserved by Mrs. Stover for herself in her deed to her daughter and her statutory life estate as heir of her daughter should not in my judgment be either added or subtracted. But the equitable charge for the maintenance of Mrs. Stover constituted an incumbrance on the entire .property, and both her life estate and the remainder, in proportion to their respective values, w:ere subject thereto. Mrs. Stover as life tenant had the use, control, and management of the farm while she lived, and it was of no consequence to the remaindermen whether she lived on the farm or elsewhere. The reasonable value of her maintenance according to her station in life and of the general character contemplated in her deed to her daughter was chargeable against the interests of the remaindermen to the extent above indicated.

Both these rights, viz., the equitable right of Mrs. Stover to have the value of her maintenance enforced against the farm and her life estate in the farm, were transferred by her conveyance to Mr. Galusha and by the subsequent mesne conveyances to appellant. The error of the court below consists in having ignored the reservation of Mrs. Stover in her deed to her daughter, and treating the case as if the appellant had only acquired the statutory life estate of Mrs. Stover. It is evident from what has been said that the appellant has a present lien on the property for some part of the value of Mrs. Stover’s maintenance. As the value of the life estate was not established at the trial, and as there is no finding as to the value of the farm, the amount of such lien of the appellant cannot now be stated; but it was clearly error for the trial court to find, as it did, “that upon the death of said Phoebe Stover all the right, title, and interest of said Samuel Morgan in said premises ceased and determined,” and to render judgment accordingly.

The judgment is also wrong in adjudging that the undivided one-sixth part of the premises acquired by Daniel Galusha after his convey - anee thereof belongs to his widow and heirs. He had previously conveyed the farm by a warranty deed purporting to convey t'"e entire title, and the appellant succeeds to the title thus conveyed. It is set-*716tied that a title subsequently acquired by a party who has granted land with covenant of warranty inures to the benefit of his grantee. House v. McCormick, 57 N. Y. 310; Sweet v. Green, 1 Paige, 473, 19 Am. Dec. 442; Kellogg v. Wood, 4 Paige, 578. The appellant is therefore the owner of such undivided one-sixth interest.

The interlocutory judgment must be reversed on the law and facts, and a new trial granted, with costs to the appellant to abide the event-All concur.