By the Court, Parker, P. J.
This is an action for partition. The parties all claim under the will of William Spier, bearing date May 24, 1821, to which a codicil was added October 4, 1830. The testator died in 1833. The clause of the will on which the title of these parties, to the lands in question, depends, is as follows : “I give my eldest daughter, Polly Guernsey, in addition to what I have already given her, a lot of land containing thirty-five acres, together with all the privileges and appurtenances belonging, or in anywise appertaining, (except where, on any part of the premises, I have heretofore given a release, or by any means discharged my right.) ' The lands lie in the town of Norwich, county of Chenango, State of New York, whereon Peter B. Guernsey now resides. I will that the above described premises be for the use of my daughter Polly Guernsey during her natural life, then to be equally divided amongst her now surviving children, or any of them that may be alive at her decease, or the heirs of any that may be dead at the time of executing this my last will.”
In May, 1821, Polly Guernsey had four children, Peter [174]*174B. Jr., Polly, and the defendants William G-. Guernsey and Lavinia Guernsey. Peter B. Guernsey, Jr., died April 15, 1829, leaving two children surviving him; one of whom died in infancy, and the other, William B. Guernsey, is still living. Polly Guernsey died in 1854. Polly, the daughter of Polly Guernsey, became by marriage, Polly Thompson, in 1828, and died intestate in 1847, leaving seven children, four of whom instituted this suit, as plaintiffs, and the other three' are defendants. The said William B. Guernsey, in 1849, conveyed all his interest in' the premises to the other persons entitled under 'the will.
The plaintiffs claim that, under the will and the said conveyance, the children of Polly Thompson are, together, entitled to one equal third part of the premises, (each of said children being therefore entitled to one seventh of one third thereof,) and that William G. Guernsey and Lavinia Guernsey are each entitled to one equal third part thereof. While the defendants William G. Guernsey and Layinia Guernsey claim each one half thereof, and. deny that the children of Polly Thompson have any interest therein.
The claim of the plaintiff's was sustained at special term. The plaintiffs also asked for and obtained an accounting against William G. Guernsey, Lavinia Guernsey and James G. Thompson, which was had. From the judgment rendered, or portions thereof, the three defendants last named have severally appealed.
The first and most important question presented by the appeals is, whether under the will of William Spier, the children of Polly Thompson took any interest in the premises. The testator gives the land in question to Polly Guernsey for'life, “then” in the language of the will, “to be equally divided amongst her now surviving children, or any of them that may be alive at her decease, or the heirs of any that may he dead at the time of executing this my last will”' It is under the last clause, “ or the heirs of [175]*175any that may be dead at the time of executing this my last will,” that the children of Polly Thompson claim, for she was not alive at the decease of Polly Guernsey, and herself took no absolute estate under the devise.
"What then, did the testator mean by the words “at the time of executing this my last will.” If he meant the time of signing and publishing it, the Thompson heirs cannot come in under the devise, for their mother was not then dead, and they were not then born. But we are at liberty to inquire whether he used the words in this technical sense or not, (DeKay v. Irving, 5 Denio, 646, 655,) and it is clear, I think, that this could not have been his meaning. The language may have another meaning, to wit, the carrying into effect the provisions of the will. “ To carry "into effect,” is one of the definitions of the word “ execute.” Hence the word executor means, according to Worcester," citing Burrill, “ one who is appointed by a testator, in his last will and testament, to see and take care that it is executed, or carried into effect after his decease.” It was executing, in this sense, that the testator meant. He was providing for a future event; “ then,” that is, on the decease of Polly Guernsey, “to be equally" divided among her now surviving children,” (meaning all her then living children, being all the children she éver had, so far as appears,) “ or any of them that may be alive at her decease,” still looking to the future, and then comes this clause, “ or the heirs of any that may be dead at the time of executing this my last will.” The word “ any,” in this clause, according'to the natural construction, refers to the previous subject, “her now surviving children,” and under such construction cannot refer to children of bis daughter Polly who had previously died, if indeed there were such. But none of her children had then died, so that, in point' of fact, the testator could not have intended to refer to the heirs of any who were then, at the time of making and publishing the will, dead. Hor can we con-[176]*176elude that he supposed such fact might exist, and was providing for a possible state of facts, when we see that the eldest child was then but 22 years of age and unmarried, as were all the children. It is quite too improbable for belief, that he would be ignorant of the marriage of either of his grandchildren for the length of time implied in such hypothesis, and of the subsequent .death also, notwithstanding the then comparatively infrequent means of intercommunication between the place of his residence and theirs. Besides, we find this phrase in connection with devises and bequests to other children of the testator, plainly having reference to a future time, as in the following instance: “I give to my three daughters now living, and to the heirs of Lydia Chichester (a deceased daughter) all my household furniture, two thirds at my decease, and the other third after their mother’s decease, to be equally divided into four parts. * * * Should it so happen, in the course of divine providence, that any of my daughters should be dead, and leave no heirs living- at the time of executing this my last will, then their shares to be equally divided,” &c. And again: “ The remaining property I have after my debts and funeral charges are paid, if any, I will should be divided into twelve equal parts, my son Joseph Spier or his heirs, two ; my son William Spier or his heirs, two,” (thus going through with all his children.) “ I will further, that' if it should happen, in the course of 'divine providence, that if either of my children should die and leave no heirs of their own body living at the time of executing this my last will and testament, then I will that their shares should be divided amongst my surviving heirs as above.” The “ executing” spoken of in these clauses, cannot mean the signing and publishing of the- will, but evidently refers to a subsequent time, and must mean the going into execution of the provisions of the will with which the clause, as it occurs, is connected.
In the connection in which the words occur in the clause [177]*177under consideration, I have no doubt they were intended, by the testator to indicate the time when the devise would take effect in favor of the devisees in remainder, by the death of Polly Guernsey. Then the will was fully executed, so far as this portion of the estate was concerned.
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By the Court, Parker, P. J.
This is an action for partition. The parties all claim under the will of William Spier, bearing date May 24, 1821, to which a codicil was added October 4, 1830. The testator died in 1833. The clause of the will on which the title of these parties, to the lands in question, depends, is as follows : “I give my eldest daughter, Polly Guernsey, in addition to what I have already given her, a lot of land containing thirty-five acres, together with all the privileges and appurtenances belonging, or in anywise appertaining, (except where, on any part of the premises, I have heretofore given a release, or by any means discharged my right.) ' The lands lie in the town of Norwich, county of Chenango, State of New York, whereon Peter B. Guernsey now resides. I will that the above described premises be for the use of my daughter Polly Guernsey during her natural life, then to be equally divided amongst her now surviving children, or any of them that may be alive at her decease, or the heirs of any that may be dead at the time of executing this my last will.”
In May, 1821, Polly Guernsey had four children, Peter [174]*174B. Jr., Polly, and the defendants William G-. Guernsey and Lavinia Guernsey. Peter B. Guernsey, Jr., died April 15, 1829, leaving two children surviving him; one of whom died in infancy, and the other, William B. Guernsey, is still living. Polly Guernsey died in 1854. Polly, the daughter of Polly Guernsey, became by marriage, Polly Thompson, in 1828, and died intestate in 1847, leaving seven children, four of whom instituted this suit, as plaintiffs, and the other three' are defendants. The said William B. Guernsey, in 1849, conveyed all his interest in' the premises to the other persons entitled under 'the will.
The plaintiffs claim that, under the will and the said conveyance, the children of Polly Thompson are, together, entitled to one equal third part of the premises, (each of said children being therefore entitled to one seventh of one third thereof,) and that William G. Guernsey and Lavinia Guernsey are each entitled to one equal third part thereof. While the defendants William G. Guernsey and Layinia Guernsey claim each one half thereof, and. deny that the children of Polly Thompson have any interest therein.
The claim of the plaintiff's was sustained at special term. The plaintiffs also asked for and obtained an accounting against William G. Guernsey, Lavinia Guernsey and James G. Thompson, which was had. From the judgment rendered, or portions thereof, the three defendants last named have severally appealed.
The first and most important question presented by the appeals is, whether under the will of William Spier, the children of Polly Thompson took any interest in the premises. The testator gives the land in question to Polly Guernsey for'life, “then” in the language of the will, “to be equally divided amongst her now surviving children, or any of them that may be alive at her decease, or the heirs of any that may he dead at the time of executing this my last will”' It is under the last clause, “ or the heirs of [175]*175any that may be dead at the time of executing this my last will,” that the children of Polly Thompson claim, for she was not alive at the decease of Polly Guernsey, and herself took no absolute estate under the devise.
"What then, did the testator mean by the words “at the time of executing this my last will.” If he meant the time of signing and publishing it, the Thompson heirs cannot come in under the devise, for their mother was not then dead, and they were not then born. But we are at liberty to inquire whether he used the words in this technical sense or not, (DeKay v. Irving, 5 Denio, 646, 655,) and it is clear, I think, that this could not have been his meaning. The language may have another meaning, to wit, the carrying into effect the provisions of the will. “ To carry "into effect,” is one of the definitions of the word “ execute.” Hence the word executor means, according to Worcester," citing Burrill, “ one who is appointed by a testator, in his last will and testament, to see and take care that it is executed, or carried into effect after his decease.” It was executing, in this sense, that the testator meant. He was providing for a future event; “ then,” that is, on the decease of Polly Guernsey, “to be equally" divided among her now surviving children,” (meaning all her then living children, being all the children she éver had, so far as appears,) “ or any of them that may be alive at her decease,” still looking to the future, and then comes this clause, “ or the heirs of any that may be dead at the time of executing this my last will.” The word “ any,” in this clause, according'to the natural construction, refers to the previous subject, “her now surviving children,” and under such construction cannot refer to children of bis daughter Polly who had previously died, if indeed there were such. But none of her children had then died, so that, in point' of fact, the testator could not have intended to refer to the heirs of any who were then, at the time of making and publishing the will, dead. Hor can we con-[176]*176elude that he supposed such fact might exist, and was providing for a possible state of facts, when we see that the eldest child was then but 22 years of age and unmarried, as were all the children. It is quite too improbable for belief, that he would be ignorant of the marriage of either of his grandchildren for the length of time implied in such hypothesis, and of the subsequent .death also, notwithstanding the then comparatively infrequent means of intercommunication between the place of his residence and theirs. Besides, we find this phrase in connection with devises and bequests to other children of the testator, plainly having reference to a future time, as in the following instance: “I give to my three daughters now living, and to the heirs of Lydia Chichester (a deceased daughter) all my household furniture, two thirds at my decease, and the other third after their mother’s decease, to be equally divided into four parts. * * * Should it so happen, in the course of divine providence, that any of my daughters should be dead, and leave no heirs living- at the time of executing this my last will, then their shares to be equally divided,” &c. And again: “ The remaining property I have after my debts and funeral charges are paid, if any, I will should be divided into twelve equal parts, my son Joseph Spier or his heirs, two ; my son William Spier or his heirs, two,” (thus going through with all his children.) “ I will further, that' if it should happen, in the course of 'divine providence, that if either of my children should die and leave no heirs of their own body living at the time of executing this my last will and testament, then I will that their shares should be divided amongst my surviving heirs as above.” The “ executing” spoken of in these clauses, cannot mean the signing and publishing of the- will, but evidently refers to a subsequent time, and must mean the going into execution of the provisions of the will with which the clause, as it occurs, is connected.
In the connection in which the words occur in the clause [177]*177under consideration, I have no doubt they were intended, by the testator to indicate the time when the devise would take effect in favor of the devisees in remainder, by the death of Polly Guernsey. Then the will was fully executed, so far as this portion of the estate was concerned. According to this construction, the clause may be paraphrased as follows: “On the death of Polly Guernsey, to be equally divided amongst her children now living, or any of them that may be alive at her decease, or the heirs of any of them that may then be dead.” It seems to me there is but little room for doubt, as. to the meaning of the devise in this form. The testator thereby evidently intended to give the property, on the death of Polly Guernsey, to the children she had living at the time of the making of the will, or, in the event that any of them should die before Polly Guernsey, then to those of them who should survive her, and the heirs of those of them who should not. All concerned agree as to the first two branches of this proposition, to wit, that the intention was to give the property in remainder, to the children of Polly Guernsey living at the date of the will, or in the event of the death of any of them before her death, to those of them who should survive her—but the defendants William G. Guernsey and Lavinia Guernsey give no effect to the last clause, confining its application to the heirs of such of Polly Guernsey’s children as are dead at the date of- the will—and, as there were in fact none such, striking it out altogether. The meaning of this clause, at which we have arrived, however, makes it necessary to retain and construe it in. its connection. When the testator, therefore, having given the property in remainder to the then living children of Polly Guernsey, goes on to provide that in the event of the death of any of them before her death, it shall go to those of them who “ may be alive at her death, or the ■heirs of any of them that may then be dead,” it. is evidently a case where “or” has been used for “and,” the [178]*178intent being to give it to the children of Polly Guernsey who should survive her, and the heirs of such of them as should not. This accords with the general intent of the testator • manifested throughout the will; and moreover is the only construction which saves the devise from being void for uncertainty—for if the devise is to the survivors or to the heirs of those deceased—to the one class or the other—there being no means of ascertaining to which, of course it cannot take effect, and must fail altogether, (Waite v. Templer, 2 Sim. 524,) and in such case it is the duty of the court to adopt the construction which will . leave it effectual in law, (Mason v. Jones, 2 Barb. 231,) and as the testator intended the clause to have some effect, and that intention can be carried out only by the change of “ or” into “ and,” such change must be made. (Roome v. Phillips, 24 N. Y. 463.)
The construction given to the devise at the special term was manifestly the correct one, and should be upheld.
There can be no doubt that the accounting ordered between these tenants in common was proper in this case.' This is not the statutory proceeding for partition, but a suit in equity; and therefore, as the court has jurisdiction of the subject matter and the parties in interest, it is in ■ accordance with a well established rule, that it should do complete justice between the parties, by disposing of all questions between them in relation to the land and its use. In the language of Judge Story, “ the jurisdiction having once rightfully attached, it shall be made effectual for the purposes of complete relief.” (Story’s Eq. Jur. § 64, k.) Besides, this action is brought for a partition and account, and in such case the latter will be decreed. (Story’s Eq. Jur. § 655.)
In regard to the respective claims of William G. Guernsey and James G. Thompson, fqr improvements made by them on the premises, I think the judgment is right in denying those claims. The referpe reports, as to the [179]*179buildings erected by Guernsey, and I think the evidence sustains him, that they were put up under an arrangement between him and -the tenant for life, by which he was to have the accruing rents during her term, which he did receive, the aggregate amount of which largely exceeded the value of the buildings, with interest on such value. Having been built under such an arrangement, they are to be regarded as built by the tenant for life, and go, on her death, with the land, to those entitled in remainder. The circumstance that Guernsey is one of the tenants in remainder, does not give him any more equitable interest in the buildings than if he were a stranger. It is not like the case where a tenant in common in possession has made valuable improvements, with the assent of his co-tenant, or under a mistaken belief that he was sole owner. In such case it may be. equitable that the tenant who has made the improvements should be allowed for them; and a court of equity will, in a proper case, refuse to assist his co-tenant to make partition, unless he does equity, by allowing the benefit of the improvements to the party who made them. (Conklin v. Conklin, 3 Sandf. Ch. R. 64. Putnam v. Ritchie, 6 Paige, 390. Matter of Heller, 3 id. 199.) True, in Green v. Putnam, (1 Barb. 500,) the improvements were made, as in this case, during the continuance of the life estate; but there was the assent of the co-tenant, to the erection of a house of proper size and value, and although a more expensive one'was erected, the parties erecting it, or their grantees, were allowed only the expense of such a house as was consented to. In the case at bar, no assent of the co-tenants of Guernsey to the erection of the buildings is shown, and they were not built by him under a mistaken belief that he was the sole owner; and I do not think, inasmuch as he has been fully reimbursed, by the rents he has received, for all his expenditures, and interest, that equity demands that he should, in the accounting, be allowed for their value.
[180]*180Neither do I see anything in the circumstances under which James G. Thompson made the improvements for which he claims, entitling him to be allowed therefor. He was in possession, but not claiming as sole owner, and there was no assent of his co-tenants, The decision at special term that he was not entitled to an allowance for his improvements, was, I think, correct.
The referee allowed interest upon the moneys received ' for rents, from, the time of their receipt. In this I think he was right. The money belonged to all the co-tenants, in the proportion of their interest in the property, and when one received the whole he became the.debtor of each, for his proportion, and an action for money had and received could have been brought for it, without a previ- v ous demand. (1 R. S. 750, § 9.) There being default in the payment of a liquidated amount of money due, interest was properly charged. (Williams v. Sherman, 7 Wend. 109. Van Bensselaer v. Jewett, 2 Comst. 135.)
, The insurance paid by Guernsey on the buildings erected by him was correctly disallowed. The policy was to him and his mother, the tenant for life, for their benefit, and not for that of the other tenants in common of the remainder, and they could have derived no benefit from it. ( Wyman v. Prosser, 36 Barb. 368.)
The judgment correctly, I think, makes the amounts found due from the parties who have received the rents of the premises liens on their respective shares of the real estate for the excess received beyond their shares of such rents. (Hannan v. Osborn, 4 Paige, 336.)
The defendant William G. Guernsey objects to the judgment in that it directs a sale, and not a partition of the premises, although the sale is directed to be made in parcels. The seeming incongruity of these directions vanishes when w'e see that the parcels specified are by no means such as would constitute a division according to the respective interests of the parties; but are such as (in the [181]*181opinion of the referee, which opinion, so far as I can see, is well founded) will be likely to bring the most money in the aggregate. I see no reason to make any change in regard to this part of the judgment.
[Broome General Term,
May 15, 1866.
There is no error in the order bringing in D. Wilmot Scott, the administrator of his wife Mary 0. Scott, one of the plaintiffs, who died after the commencement of the suit. As such administrator he was entitled to that portion of the rents which accrued to Mary 0. Scott prior to her death; and as the action seeks an accounting, as well as a partition, complete relief could not be granted without making him a party.
Upon the whole, I do not see any error in the judgment, and am of the opinion that it should be affirmed, with costs
Parker, P. J., and Balcom, Mason and Boardman, Justices.]