Levy v. Levy. authorizes the motion to be made at any stage of the action. The result of the application of the terms of this statute to actions in tort must be unsatisfactory in many cases, but as the discretion to be exercised is judicial and not personal, I do not see how the plain terms of the act are to be disregarded. The motion is granted on payment of the costs of the action to date. This condition is required because of the great delay of the plaintiff in moving. As the question is a novel one, a stay of proceedings on the order to be entered herein will be granted until this decision can be reviewed at the General Term, if the defendant desires such stay. LEVY v. LEVY. N. Y. Supreme Court, General Term, First Department; June, 1894. 1. Trusts.] Where a will devised the residue of testator's estate to his executors in trust to divide the same into as many shares as he had sons, and to apply the rents and profits of each share to the use of a son named for life, and upon his death to divide the principal of such share among said son's children, with a provision, that in event of the death of a son without issue him surviving, the share of said son should be divided among the other sons, the issue of any deceased son to take their parents' share,-held, that, at testator's death, the execu tors took only an estate in each share for the life of the son for whose benefit it was held, and that the grandchildren then in being were entitled to a vested remainder.* Townshend v. Frommer, 26 Abb. N. C. 441; S. C., 125 N. Y. 446, questioned; and Campbell v. Stokes, 142 N. Y. 23, followed. 2. Parties.] During the life of the beneficiary for whom executors are to hold real estate in trust, those among whom the execu * For note on trusts to convey, as preventing the vesting of the gift and altering the rule as to parties, see 26 Abb. N. C. 465. Levy v. Levy. tors are to divide the same on the termination of the life estate are necessary parties to an action affecting the title. 3. Pleading. Whether in an action for partition by a remainderman, it can be determined upon demurrer from the description in the complaint that the land cannot be actually partitioned, quere? Appeal from a judgment of the Special Term of the Supreme Court, first district, sustaining a demurrer to the complaint. Action for partition brought by Arthur Garfield Levy against Carrie Levy and others. The complaint alleged, among other things, that Adolph Levy died seized in fee of certain described premises, consisting of a house and lot on Forty-second Street in the city of New York; that the premises were encumbered by a mortgage made by said Adolph Levy; that said Levy left a will relating to both real and personal estate, which was duly admitted to probate; that he left five surviving sons, among whom was Samuel Levy the father of plaintiff; that the mortgage was foreclosed without making the plaintiff and the defendant, Carrie Levy, parties, and the premises purchased by the defendants, Kohn and Herrman, at the foreclosure sale; that the plaintiff and defendants, other than the defendant Vogel, were tenants in common of a vested remainder in the premises in question; and that plaintiff was entitled to a one undivided ninth therein. Wherefore, plaintiff demanded judgment that the premises be partitioned among the parties, other than the defendant Vogel, or if it could not be done without detriment, that they be sold. and the proceeds divided. The will of Adolph Levy devised the residue of his estate as follows: "Third. Of the rest, residue and remainder of my estate, wheresoever and whatsoever, I give and devise to my executors hereinafter named, who shall qualify, their survivors and successors, upon trust to receive the rents, Levy v. Levy. income and profits thereof, and to divide the same into five equal parts or shares, and to apply such rents, income and profits in manner following: "Fourth. To receive the rents, income and profits of one of said shares and apply the same to the use of my son, Samuel Levy, so long as he shall live; and upon his death to divide the principal of such share equally among his children share and share alike, provided that if at the time of the death of my said son any of his children shall be under the age of twenty-one years, then the income of such child's portion of my said son's share shall be applied by my said trustees towards the support, education and maintenance of such child until he or she become of age, and thereupon the principal of his or her portion of such share shall be paid over to such child." Similar provisions were made in regard to the shares given the other sons. After such provisions, the will further provided as follows: "Tenth. In the event of the death of any of my said sons without leaving issue him surviving, I give and devise the share of said son to and among my other children, share and share alike, the issue of any deceased child collectively taking the share which their parent, if living, would have taken, and to be held by my executors during the lives of such children and the minorities of such issue in the manner herein before provided as to the share of each son." Defendants who claimed under the foreclosure sale demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action. The Special Term overruled the demurrer, holding that the plaintiff and the defendant, Carrie Levy, were not necessary parties defendant to the foreclosure action, and, therefore, title to the property passed under the fore closure sale. George Wilcox and Ira Leo Bamberger, for appellants. Levy v. Levy. The allegations of the complaint are sustained by a proper construction of the will (Citing 1 R. S. 723, § 13; Stevenson v. Lesley, 70 N. Y. 515; Townshend v. Frommer, 125 Id. 446, 456: Lyons v. Mahan, 1 Dem. 180, 184; 1 R. S. 730, § 67; Campbell v. Stokes, 142 N. Y. . 23). Thomas W. Butts (Horwitz & Hershfield, attorneys), for respondents.-I. It was only necessary to make the executors parties defendant to the action of foreclosure (Citing U. S. Trust Co. v. Roche, 116 N. Y. 120; Townshend v. Frommer, 125 Id. 446). II. As a valid express trust was created by the will, the executors were vested with the legal estate, and no action of partition will lie at the instance of this plaintiff either against the trustees under the will or their grantees or the purchasers at the foreclosure sale (Citing Striker v. Mott, 2 Paige, 387; Morse v. Morse, 85 N. Y. 53: Harris v. Larkins, 22 Hun, 488; Sullivan v. Sullivan, 66 N. Y. 37 ; Hughes v. Hughes, 11 Abb. N. C. 38; aff'd in 30 Hun, 349). VAN BRUNT, P. J.-This action was brought for the partition of certain premises in the city of New York; and the demurrer to the complaint was upon the ground that it did not state facts sufficient to constitute a cause of action. The complaint alleges that the plaintiff, with the other defendants (except certain lessees), are tenants in common of a vested remainder in and to the premises in question; and that he is entitled to a one undivided ninth of and in the said premises in fee; which allegation, how. ever, seems to be at variance with the title of the plaintifi as disclosed in the complaint. Judgment is prayed that the real estate be partitioned, or if that cannot be done without detriment to the several interests so partitioned, the same be sold. It is urged by the defendant that, as the plaintiff is not among those enumerated in § 1532 of the Code as Levy v. Levy. entitled to maintain this action, the demurrer must be sustained. But by § 1533 it is expressly provided that the holder of a vested remainder may maintain partition under certain circumstances. It may be suggested that as the premises, according to their description, consist of a single lot of land, with buildings thereon, it is difficult to see how it can be actually partitioned; and in the case of an action brought by remaindermen there can be no sale, but where actual partition cannot be had, the bill must be dismissed. As perhaps the court may not be able to take judicial notice of the fact that, upon the face of this bill, the same must ultimately be dismissed, because of the provisions of g 1533 of the Code, it may be necessary to consider the question as to whether the plaintiff in this action has such an estate as authorizes him in any event to bring an action in partition. The facts out of which the controversy arises are as follows: Adolph Levy died in 1885, owning the premises in question, subject to a mortgage, and leaving a will whereby he devised the residue of his estate, including said premises, to his executors in trust to receive the rents, income and profits thereof, and to divide the same into five equal parts or shares, and to apply such income and profits in the manner following; and so far as respects the alleged interest of the plaintiff herein the provisions of the will are as follows: "Fourth. To receive the rents, income and profits of one of said shares and apply the same to the use of my son, Samuel Levy, so long as he shall live; and upon his death to divide the principal of such share equally among his children, share and share alike." Then follows a provision, that if any of these grandchildren are under the age of twenty-one years, the trustee shall apply such income to the support, education and maintenance of such child until he or she should become of age; and upon the arrival of the infant at the age of twenty-one years, the |