Dwight v. Lawrence

Appellate Division of the Supreme Court of New York

Dwight v. Lawrence

111 A.D. 616, 98 N.Y.S. 76, 1906 N.Y. App. Div. LEXIS 229

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 9, 1906

StatusPublished

This text of 111 A.D. 616 (Dwight v. Lawrence) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dwight v. Lawrence, 111 A.D. 616, 98 N.Y.S. 76, 1906 N.Y. App. Div. LEXIS 229 (N.Y. Ct. App. 1906).

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Opinion

Per Curiam:

The judgment appealed from' must he- affirmed. It properly directs a sale of the property affected. It is perfectly obvious, under the proofs presented, that an actual partition could- not be [617]*617made so. as to do justice to all of the parties interested. Under the judgment appealed from the plaintiff is entitled to an undivided one-fourth interest; the appellant, individually and as sole heir at law of Samuel R. Lawrence (who has died since the appeal was taken), is entitled to an undivided one-half interest; and the remaining one-fourth interest is held -by Gaines Lawson, as executor and trustee under the last will and testament of Laura Lawson, deceased, in trust to pay the income therefrom, one-half to the defendant Katherine L. Neumann during her life and the other half to Lawrence M. Lawson during his life. The defendants Katherine L. Neumann, Lawrence M. Lawson and the infant defendant Katherine R. Neumann have an interest, either vested or contingent, in this remainder, but it is immaterial whether or not such interest be correctly stated in the judgment, inasmuch as none of them have appealed therefrom and this part of the judgment in no way affects or concerns the plaintiff. It is sufficient to say that a purchaser upon the sale will obtain good title inasmuch as there are now before the court all of the parties who-at the present time have any interest in the subject-matter of the sale. (Code Civ. Proc. §§ 1557, 1577.) The "fact that' there may hereafter be unborn children who might have an interest in the one-fourth interest or some part thereof now held by Gaines Lawson, as executor and trustee, could not affect the title because “ the person(s) first entitled to which or other virtual representative(s) whereof ” are parties to the action. (Code Civ. Proc. § 1557, subd. 3.) The only appellant is Edgar V. Lawrence.

The plaintiff, after deducting the costs and expenses of the sale, will be entitled to one-fourth of the proceeds, the appellant to one-half, and the defendant Gaines Lawson, as executor and trustee under the last will and testament of Laura Lawson, to the remaining one-fourth, the same to be held by him in trust and to be disposed of in accordance with the terms of such will

The judgment appealed from, therefore, should be affirmed, with costs to the respondent.

Present — O’Brien, P„ J., Ingraham, MoLahghlin, Laughlin and Houghton, JJ.

Judgment affirmed, with costs. Order filed.

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Per Curiam:

The judgment appealed from' must he- affirmed. It properly directs a sale of the property affected. It is perfectly obvious, under the proofs presented, that an actual partition could- not be [617]*617made so. as to do justice to all of the parties interested. Under the judgment appealed from the plaintiff is entitled to an undivided one-fourth interest; the appellant, individually and as sole heir at law of Samuel R. Lawrence (who has died since the appeal was taken), is entitled to an undivided one-half interest; and the remaining one-fourth interest is held -by Gaines Lawson, as executor and trustee under the last will and testament of Laura Lawson, deceased, in trust to pay the income therefrom, one-half to the defendant Katherine L. Neumann during her life and the other half to Lawrence M. Lawson during his life. The defendants Katherine L. Neumann, Lawrence M. Lawson and the infant defendant Katherine R. Neumann have an interest, either vested or contingent, in this remainder, but it is immaterial whether or not such interest be correctly stated in the judgment, inasmuch as none of them have appealed therefrom and this part of the judgment in no way affects or concerns the plaintiff. It is sufficient to say that a purchaser upon the sale will obtain good title inasmuch as there are now before the court all of the parties who-at the present time have any interest in the subject-matter of the sale. (Code Civ. Proc. §§ 1557, 1577.) The "fact that' there may hereafter be unborn children who might have an interest in the one-fourth interest or some part thereof now held by Gaines Lawson, as executor and trustee, could not affect the title because “ the person(s) first entitled to which or other virtual representative(s) whereof ” are parties to the action. (Code Civ. Proc. § 1557, subd. 3.) The only appellant is Edgar V. Lawrence.

The plaintiff, after deducting the costs and expenses of the sale, will be entitled to one-fourth of the proceeds, the appellant to one-half, and the defendant Gaines Lawson, as executor and trustee under the last will and testament of Laura Lawson, to the remaining one-fourth, the same to be held by him in trust and to be disposed of in accordance with the terms of such will

The judgment appealed from, therefore, should be affirmed, with costs to the respondent.

Present — O’Brien, P„ J., Ingraham, MoLahghlin, Laughlin and Houghton, JJ.

Judgment affirmed, with costs. Order filed.

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Bluebook (online)

111 A.D. 616, 98 N.Y.S. 76, 1906 N.Y. App. Div. LEXIS 229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dwight-v-lawrence-nyappdiv-1906.