FOLLETT, J.
June 1, 1892, the litigants entered into a written contract by which the plaintiff agreed to sell, and the defendant to purchase, certain real estate for $3,400, the title of which was to be conveyed in fee simple and free from incumbrances. The defendant paid $340 towards the purchase price, and $68 fees of the auctioneer and sales room. The contract was to be closed and the premises conveyed July 6, 1892, when the plaintiff tendered a deed sufficient in form, which the defendant refused to accept, on the ground that the plaintiff was unable to vest the defendant with an absolute title to the land in fee simple. The question submitted is whether the plaintiff is able to convey the real estate to the defendant by a good title in fee simple. The plaintiff demands a judgment for the remainder of the purchase price,—$3,060,—with interest from July 6, 1892, with costs, and the defendant demands a judgment for $408, the amount of the sums paid by him, with interest from July 6, 1892, with costs. August 11, 1863, Joseph [460]*460■Cudlipp died, seised in fee simple of 9.85 acres of land in the town of Morrisania, which he devised as follows:
“Item. The piece of ground owned by me in Westchester county, on Union avenue and Westchester road, I order and direct to be divided into 4 equal parts or shares, lengthwise. The part or share fronting on the Westchester road I give, devise, and bequeath to my son, Joseph; the part next adjoining, to my daughter Annie; the part next adjoining, to my daughter Sarah; and the part next adjoining, to my daughter Elizabeth,—the land so devised to be held by them, respectively, during them natural lives, and upon their deaths, respectively, to their respective children, forever; subject, however, to the dower interest of my said wife.”
September 22, 1863, the will was duly admitted to probate and recorded. The testator left, him surviving, the four children mentioned in said devise, who were his only heirs, and a widow, who died February 13, 1869. When he died, his daughter Elizabeth was married and had five children. His daughter Sarah had no children when he died or when the land was sold, but now has children. It does not appear whether Joseph or Annie had children at the testator’s death, but, if either had, they died before the land was sold, for it appears by the submission that the children of each living when the land was sold were born since the death of the testator. By the devise, every one of the four children, having children at the testator’s death, took a life estate in a separate parcel of land, and his or her children a vested remainder in the ■same parcel, subject to open and let in after-born children. These devises to the four children and to their children, respectively, were as distinct and separate as though the four parcels had been situate in different townships. Elizabeth and her children took the title to the parcel (Ho. 4) devised to them; but they had no interest, legal or equitable, in any one of the other three parcels, and none of the other three life tenants or their children had any title to or interest in the parcel devised to Elizabeth and to her children. Hone of the four children or their children, born or unborn, had any vested or contingent interest in more than one parcel. This being the situation of the title, an act was passed May 3, 1872 (chapter 479, Laws 1872), by which the supreme court was authorized, upon the application of the four children and their legal issue in being, to sell in fee simple absolute said lands, or any part thereof, at one time or at different times, as might be adjudged to be expedient. The act provides that, if the court should order a sale of the premises, a referee should be appointed, under whose direction it should be made, who should convey the premises •sold upon the court’s affirming the sale. The- act declared that the conveyances made pursuant to such authority should vest in the purchaser or purchasers the fee simple absolute, against all persons having any interest in the land, under said last will, whether in being or not. The fourth section provides that the referee pay the expenses of the sale, all unpaid taxes, liens, and charges on the land, and pay the residue to such trust company as the court may direct, to be invested in the name of the treasurer of the -county of Westchester, in bonds secured by mortgages upon real •estate in this state, for the benefit of such persons as are or may [461]*461become interested in such lands. The act provides that the life tenants (they consenting) be paid a gross sum in lieu of their several life interests in the premises, pursuant to section 52 of title 3 of chapter 5 of part 3 of the Revised Statutes.
On the 8th of August, 1872, the petition to the supreme court was verified by the four children of the testator and by all of their children then of the age of 14 years and upwards, and by Charles A. Flammer, the next friend and guardian of all of their children under 14 years of age, praying that the real estate be sold, pursuant to the provisions of said act. The petition contains allegations sufficient to authorize the sale of real estate of infants, pursuant to the general statutes of this state. A guardian ad litem was appointed for the infants, and a referee, to inquire as to the truth of the allegations set forth in the petition, who reported that a sale of the lands would be for the benefit of all of the parties in interest. Upon this report the court directed the referee to subdivide the tract composed of the four parcels into ordinary city lots, make a map thereof, file it in the office of the register of deeds of Westchester county, and sell the lots. The tract was subdivided into 118 lots, and a map made of it and filed. Nos. 28, 29, 30, 31, 32, 35, 37, 38, 39, 40, 41} 42, 43, 44, 45, 46, 47, 75, 76, 77, 78, 79, 80, 81, 113, 114, 115, included some of the land devised to Joseph and his children (parcel No. 1) and some of the land devised to Annie and her children (parcel No. 2). Lots Nos. 8, 22, 23, 24, 25, 26, 27, 54, 55, 56, 57,58, 59, 60, 61, 62, 63, 64, 88, 89, 90, 91, 92, 93, 94, 105, 106, 107, included some of the land devised to Annie and to her children (parcel No. 2) and some of the land devised to Sarah and to her children (parcel No. 3). The land which the plaintiff agreed to convey and the defendant to purchase embraces lots 88, 89, 90, and the east half of 91, the greater portions of which were devised to Sarah and to her children, and portions of which were devised to Annie and to her children. The order directed the referee to pay the expenses of the sale, attorney’s fees, and the liens for taxes, and then pay the residue to a trust company, to be invested by it in bonds secured by mortgages on real estate, within this state, for the benefit of such persons as are or may become interested in said lands, premises, and real estate. Whether all of the parcels were of equal value, or whether the liens for assessments were for equal amounts on every parcel, does not appear. Take, for example, the parcel devised to Elizabeth and to her children, the title to which vested on the death of the testator. The act does not provide that the value of her life estate, computed with reference to her age, shall be paid to hqr, and the remainder invested for her children; but in some way the supposed value of the four life estates was deducted from the avails of the sale of the four parcels, after deducting expenses and assessments. It seems that the interests of the life tenants were arrived at by averaging their ages, their average expectation ofjife being fixed at 31 years.
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FOLLETT, J.
June 1, 1892, the litigants entered into a written contract by which the plaintiff agreed to sell, and the defendant to purchase, certain real estate for $3,400, the title of which was to be conveyed in fee simple and free from incumbrances. The defendant paid $340 towards the purchase price, and $68 fees of the auctioneer and sales room. The contract was to be closed and the premises conveyed July 6, 1892, when the plaintiff tendered a deed sufficient in form, which the defendant refused to accept, on the ground that the plaintiff was unable to vest the defendant with an absolute title to the land in fee simple. The question submitted is whether the plaintiff is able to convey the real estate to the defendant by a good title in fee simple. The plaintiff demands a judgment for the remainder of the purchase price,—$3,060,—with interest from July 6, 1892, with costs, and the defendant demands a judgment for $408, the amount of the sums paid by him, with interest from July 6, 1892, with costs. August 11, 1863, Joseph [460]*460■Cudlipp died, seised in fee simple of 9.85 acres of land in the town of Morrisania, which he devised as follows:
“Item. The piece of ground owned by me in Westchester county, on Union avenue and Westchester road, I order and direct to be divided into 4 equal parts or shares, lengthwise. The part or share fronting on the Westchester road I give, devise, and bequeath to my son, Joseph; the part next adjoining, to my daughter Annie; the part next adjoining, to my daughter Sarah; and the part next adjoining, to my daughter Elizabeth,—the land so devised to be held by them, respectively, during them natural lives, and upon their deaths, respectively, to their respective children, forever; subject, however, to the dower interest of my said wife.”
September 22, 1863, the will was duly admitted to probate and recorded. The testator left, him surviving, the four children mentioned in said devise, who were his only heirs, and a widow, who died February 13, 1869. When he died, his daughter Elizabeth was married and had five children. His daughter Sarah had no children when he died or when the land was sold, but now has children. It does not appear whether Joseph or Annie had children at the testator’s death, but, if either had, they died before the land was sold, for it appears by the submission that the children of each living when the land was sold were born since the death of the testator. By the devise, every one of the four children, having children at the testator’s death, took a life estate in a separate parcel of land, and his or her children a vested remainder in the ■same parcel, subject to open and let in after-born children. These devises to the four children and to their children, respectively, were as distinct and separate as though the four parcels had been situate in different townships. Elizabeth and her children took the title to the parcel (Ho. 4) devised to them; but they had no interest, legal or equitable, in any one of the other three parcels, and none of the other three life tenants or their children had any title to or interest in the parcel devised to Elizabeth and to her children. Hone of the four children or their children, born or unborn, had any vested or contingent interest in more than one parcel. This being the situation of the title, an act was passed May 3, 1872 (chapter 479, Laws 1872), by which the supreme court was authorized, upon the application of the four children and their legal issue in being, to sell in fee simple absolute said lands, or any part thereof, at one time or at different times, as might be adjudged to be expedient. The act provides that, if the court should order a sale of the premises, a referee should be appointed, under whose direction it should be made, who should convey the premises •sold upon the court’s affirming the sale. The- act declared that the conveyances made pursuant to such authority should vest in the purchaser or purchasers the fee simple absolute, against all persons having any interest in the land, under said last will, whether in being or not. The fourth section provides that the referee pay the expenses of the sale, all unpaid taxes, liens, and charges on the land, and pay the residue to such trust company as the court may direct, to be invested in the name of the treasurer of the -county of Westchester, in bonds secured by mortgages upon real •estate in this state, for the benefit of such persons as are or may [461]*461become interested in such lands. The act provides that the life tenants (they consenting) be paid a gross sum in lieu of their several life interests in the premises, pursuant to section 52 of title 3 of chapter 5 of part 3 of the Revised Statutes.
On the 8th of August, 1872, the petition to the supreme court was verified by the four children of the testator and by all of their children then of the age of 14 years and upwards, and by Charles A. Flammer, the next friend and guardian of all of their children under 14 years of age, praying that the real estate be sold, pursuant to the provisions of said act. The petition contains allegations sufficient to authorize the sale of real estate of infants, pursuant to the general statutes of this state. A guardian ad litem was appointed for the infants, and a referee, to inquire as to the truth of the allegations set forth in the petition, who reported that a sale of the lands would be for the benefit of all of the parties in interest. Upon this report the court directed the referee to subdivide the tract composed of the four parcels into ordinary city lots, make a map thereof, file it in the office of the register of deeds of Westchester county, and sell the lots. The tract was subdivided into 118 lots, and a map made of it and filed. Nos. 28, 29, 30, 31, 32, 35, 37, 38, 39, 40, 41} 42, 43, 44, 45, 46, 47, 75, 76, 77, 78, 79, 80, 81, 113, 114, 115, included some of the land devised to Joseph and his children (parcel No. 1) and some of the land devised to Annie and her children (parcel No. 2). Lots Nos. 8, 22, 23, 24, 25, 26, 27, 54, 55, 56, 57,58, 59, 60, 61, 62, 63, 64, 88, 89, 90, 91, 92, 93, 94, 105, 106, 107, included some of the land devised to Annie and to her children (parcel No. 2) and some of the land devised to Sarah and to her children (parcel No. 3). The land which the plaintiff agreed to convey and the defendant to purchase embraces lots 88, 89, 90, and the east half of 91, the greater portions of which were devised to Sarah and to her children, and portions of which were devised to Annie and to her children. The order directed the referee to pay the expenses of the sale, attorney’s fees, and the liens for taxes, and then pay the residue to a trust company, to be invested by it in bonds secured by mortgages on real estate, within this state, for the benefit of such persons as are or may become interested in said lands, premises, and real estate. Whether all of the parcels were of equal value, or whether the liens for assessments were for equal amounts on every parcel, does not appear. Take, for example, the parcel devised to Elizabeth and to her children, the title to which vested on the death of the testator. The act does not provide that the value of her life estate, computed with reference to her age, shall be paid to hqr, and the remainder invested for her children; but in some way the supposed value of the four life estates was deducted from the avails of the sale of the four parcels, after deducting expenses and assessments. It seems that the interests of the life tenants were arrived at by averaging their ages, their average expectation ofjife being fixed at 31 years. The act provides no means for determining the value of the different parcels, and for distributing the value of each parcel to each family, according to its value; but all of the values are, by the act, to be mingled in a common fund.
[462]*462By this act of the legislature and the proceedings thereunder, the infant owners of the part of the least value were given part of the values arising from the sale of the parcels of the greatest value, and the infant owners of the parcel of the greatest value have been com pelled to give part of their property to the owners of the parcels of the least value. Again, the children of each life tenant had the right to have the gross value of the life estate of their father or mother ascertained with reference to his or her age, which was not done. The children of the oldest life tenant, apparently Elizabeth, had the right to have the value of the life estate of their mother determined according to her age, and not by the average age, of all of the life tenants who were younger; for, by this means, part of the interest of Elizabeth’s children was taken from them, and given to the other life tenants and to their children. The life tenants had no interest in common in these parcels, nor had the children of any one of the life tenants any interest in common with the children of the other life tenants in the parcels. They had no interest which could be partitioned. The fact that the four separate parcels were contiguous is not a controlling or material fact, for the act is open to the same objections that it would have been had the parcels not been contiguous. This act authorizes these four parcels to be sold, not separately, and the avails of every parcel invested for those interested in the particular parcel, after paying the liens thereon; but the assessments on all the parcels are to be deducted from the avails derived from the sale of all of the lands. We have looked to see if this sale, made under this act, can be sustained on the ground that it was necessarily made for the payment of taxes; but such a necessity is not shown to have existed, at least for the sale of the entire tract; and, again, every one of the parcels was not sold or assumed to be sold for taxes, which were a lien on it, but all the parcels were sold, and the amount of the liens on all were paid from the proceeds arising from a sale of the four parcels.
Under the constitution of this state, the legislature may, by a public or private act, authorize the sale of the real estate of infants or of persons not sui juris, and a sale made in pursuance of such an act will divest ihe title of such persons if it appear that reasons existed justifying the sale (Cochran v. Van Surlay, 20 Wend. 365; Powers v. Bergen, 6 N. Y. 358; Leggett v. Hunter, 19 N. Y. 446; Brevoort v. Grace, 53 N. Y. 245), provided that contingent interests, if there are any, are protected. Brevoort v. Grace, supra; Monarque v. Monarque, 80 N. Y. 320; Kent v. Church of St. Michael, 136 N. Y. 10, 32 N. E. 704. But these cases are no authority for the position that the legislature may authorize the sale • of four separate parcels of land, in which four separate families of infants are interested, and that the avails of the sale be brought into a common fund, and that the liens and the interests of the life tenants be deducted from the entire fund, based on the average of all of the life tenants. The effect of such an act would seem to be to give the property of some of the infants to others, which we are not prepared to hold to be within the power of the legislature. If, by reason of facts existing at the testator’s death and not clearly disclosed by this submis[463]*463sion, any one of the four children took the fee of his or her parcel, his or her assent to the mode of sale adopted divested him or her •of title; but this question has not been argued, and the facts are not sufficiently presented by the submission to authorize the court to •determine it. We do not declare the act of the legislature unconstitutional, and the procedure had thereunder wholly ineffectual to divest the title of all of the children of the four life tenants, because this submission relates to a small part of the land, and the owners •of the other lots into which the land was subdivided are not before the court, and there may be facts not contained in the submission which might influence the result. The title of the present owners of other lots should not be condemned without being heard, but we are of the opinion that the title tendered by the plaintiff to the defendant is so doubtful that the latter should not be required to perform the contract. A judgment should be ordered in favor of the defendant for $408, with interest from July 6,1892, with costs.
VAN BRUNT, P. J., concurs.