(77 Hun, 234.)

#### BARNES v. BARNARD et al.

(Supreme Court, General Term, First Department.

April 13, 1894.)

Partition—Sale—Contingent Interests.

Contingent interests of persons not in being are not cut off by a sale in partition, unless the judgment provides for and protects such interests. ,

Appeal from special term, New York county.

Action by Henry J. Barnes against Amelia M. Barnard, Julia A. Hilliard, William S. Mason, Lydia Brown Mason, Josephine Ball Mason, Ella Kellogg Mason, Mary Hannah Pierce, Jane WV Weaver, and Henry H. Earl, as executor of the will of Abbie M. Ball, and Thomas P. Wickes, as receiver of the property of Julia M. Luther, impleaded. From an order relieving defendants Louis Lowenstein and Albert L. Lowenstein from their contract to purchase from said receiver, Thomas P. Wickes, and directing the receiver to return to them the sums paid by them on their contract for auctioneer’s fees and for searching title, plaintiff and the other defendants appeal. Affirmed.

Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.

Horace H. Chittenden, for appellant Henry J. Barnes.

James M. Townsend, for appellant Amelia M. Barnard.

Thomas P. Wickes, appellant, in pro. per.

Masten & Nichols, for the other appellants.

Franklin Pierce, for respondents.

FOLLETT, J.

February 17, 1888, Julia M. Luther, a citizen of this state, died seised of No. 322 Delancey street and No. 56 G-oerck street, the income of which she devised to her sisters Amelia M. Barnard and Amanda M. Ball, and to the survivor of them, for life. Her will was probated in Kings county, in this state, March 20, 1888, and letters testamentary issued thereon to Amanda M. Ball, who acted as executrix until her death, and thereafter, and on the 16th of November, 1888, letters testamentary were issued to Joseph G. Luther. The testatrix left her surviving said two sisters and nine nephews and nieces, the children of a deceased brother, her only heirs and next of kin. The fee of this realty descended, subject to the life estate devised, one-third to each of her said sisters and one-third to the children of her deceased brother, each nephew and niece becoming entitled to one twenty-seventh part. In August, 1888, said Amanda M. Ball, a resident of Massachusetts, died in that state, leaving a last will, by which she devised her interest in the property to Henry J. Barnes, the plaintiff. On the 4th of September, 1888, her will was admitted to probate in the state of Massachusetts, and letters testamentary issued thereon to Henry W. Hart and Samuel M. Brown. On the 26th of April, 1892, Abbie Maria Ball, one of the nieces, a citizen of Massachusetts, died, leaving a will, by which she devised her interest in the property to Henry H. Earl, as trustee, with directions to apply the income therefrom to the support of her son, Harry Wheaton Ball, during life, *401and, upon his death leaving children, the remainder was devised to them, but, in case he left none, it was devised to the sisters of the executrix, except Mary Hannah Pierce. Her will was admitted to probate in Massachusetts, Hovember 18, 1892, and letters testamentary were issued thereon to Henry H. Earl. The wills of Amanda M. Ball and Abbie Maria Ball have not been recorded in this state, pursuant to section 2703 of the Code of Civil Procedure, nor does it appear whether they were executed in accordance with the laws of this state. James Westgate Mason, one of said nephews, died intestate in Massachusetts, September 20, 1892, leaving no ancestors nor descendants, and leaving his brothers and sisters and his nephew, Harry Wheaton Ball, his sole heirs and next of Me. In April, 1893, this action was begun to compel Joseph G-. Luther, as executor of Julia M. Luther, to account as said executor. During the pendency of the action Thomas P. Wickes was appointed receiver of the property of Julia M. Luther within this state. The surviving sister, said Amelia M. Barnard, and the seven surviving nephews and nieces, are parties defendant, and so are the representatives of Amanda M. Ball, Abbie Maria Ball, and James Westgate Mason. They all answered, and joined in the prayer of the complaint, and also prayed for a judgment distributing the estate of Julia M. Luther among the persons entitled thereto. An interlocutory judgment was entered in the action directing a sale of the property under the direction of Thomas P. Wickes, and a distribution of the avails. Hpon the sale had pursuant to the judgment the respondents became the purchasers, but afterwards applied to be relieved from their purchase upon the ground that the title is defective. Harry Wheaton Ball is not a party to this action, but he offers to join in the conveyance of his interest in the property. Ho provision is made in the judgment under which the respondents are asked to take their title for the protection of the interests of such children as Harry Wheaton Ball may leave him surviving. In an action brought for a partition and sale of realty the contingent interests of persons not in being may be cut off, provided the judgment entered provides for and protects those interests; but not otherwise. Monarque v. Monarque, 80 N. Y. 320; Kent v. Church of St. Michael, 136 N. Y. 10, 32 N. E. 704. Hnder the will of his mother, Harry Wheaton Ball did not acquire her interest in this land, and his conveyance would not cut off the interests of such children as he may leave in the land devised by his mother. The title tendered is not one which the respondents should be required to take, and the order should be affirmed, with costs. All concur.