Sayles v. Best

Herrick, J. Alfred Best, it seems to me, took no title to the real estate. Whatever interest he had in his father’s estate was as a legatee under his father’s will, and by that he was given no interest in the real estate; only in its proceeds. He could not take any interest in it until it was sold, and then he took it as personal property. It is true, probably, that within the case of Underwood v. Curtis, 127 N. Y. 523-533, 28 N. E. Rep. 585, the real property did not actually become converted into personalty until it was sold; but he could not take his portion until it- was sold. A portion of it the widow of the testator had the use of during her lifetime. The balance the executors were to take charge of, and receive the rents and profits-therefrom. The whole will shows a plain intention on the part of the testator that no part of his real estate should go to his children as such. It is carefully kept out of their possession or control, and specific directions given for the distribution of the proceeds of the sale thereof among them. If Alfred did not take as heir, and had no title to the real estate as such, then a judgment against him would not be a lien thereon. But if we assume that the title to the real estate vested in the heirs, still that title was subject to the power of sale, and was divested,by its execution. 1 Rev. St. 735, § 107, (Birdseye, St. p. 2291, § 85;) Blanchard v. Blanchard, 4 Hun, 287; Hetzell v. Barber, 6 Hun, 534; Germond v. Jones, 2 Hill, 569. Ho personal service in the supplementary, proceedings having been made upon Alfred Best, the judgment debtor, the order appointing a receiver was void. Ashley v. Turner, 22 Hun, 226; People v. Warner, (Sup.) 3 N. Y. Supp. 768. The judgment should be affirmed, with costs. All concur.