Chinn v. Keith

Gilbert, J. If the decision of the court of appeals in Moore v. Littel, 41 N. Y. 76, is to be taken as a correct exposition of the law, the devise in this case to “the heirs of the body of Mrs. Keith whom she shall leave her surviving,” created a vested remainder in fee in the present plaintiff and her brothers and sisters. No sensible distinction on this point can be drawn between the two cases. Such remainder is liable to open and let in after born children of Mrs. Keith, and is liable also, in respect to the share of any child now living, to be defeated by his or her death before the death of Mrs. Keith. Such is the rule of law laid down in Moore v. Littel. It is a rule of property. We have no alternative but to follow it whatever may be our own views of its correctness. The future contingent interests of persons not in esse may be effectually barred by a sale under a judgment in partition. Mead v. Mitchell, 17 N. Y. 210; Clemens v. Clemens, 37 id. 59; Noble v. Cromwell, 27 How. 289; Brevoort v. Grace, 53 N. Y. 251. If, therefore, a suit in partition may be maintained in behalf of a vested remainderman, the order appealed from is erroneous. Partition between tenants in common of real estate is matter of right by common law as well as by statute. Allen on Partit. 4, 78, 87; Smith v. Smith, 10 Paige, 470; Van Arsdale v. Drake, 2 Barb. 599; Haywood v. Judson, 4 id. 228. And it must now be deemed settled that one who is entitled to a vested remainder in lands is in possession of his undivided share within the meaning of the statute, notwithstanding there is a life estate covering the whole premises, and the tenant for life is in the actual occupancy thereof. Howell v. Mills, 7 Lans. 193, and cases cited, S. C., 53 N. Y. 322. It follows that the order appealed from must be reversed. Order reversed.