tion is not to be determined by the diligence or laches, or, in truth, any action, of the creditor. Why, then, should the running of the statute in Olendorf's Case have been suspended until September 1, 1880, and not after that, and until letters of administration were issued? Were it not for the decision in the Olendorf Case, it would seem to me more reasonable to say, in view of section 415, that the running of the statute is not suspended, but that the statute, as against this relief and remedy, does not commence to run until, at least, after letters are issued. But controlled, as I am, by the authority of the Olendorf Case, I must hold that the claim of Esther A. Bentley is barred, in this proceeding, by the statute of limitations.

In re SOHN'S WILL.

(Surrogate's Court, Herkimer County. January 8, 1891.)

CONSTRUCTION OF WILL-LIMITATION AFTER LIFE ESTATE.

Testator gave and devised his property to his wife "during her natural life, or so long as she may remain my widow, but, if she should remarry, her control and interest in my property is to cease, and should pass to the heirs hereinafter named," and, after naming such heirs, provided that, "in the event of the death of any of the above-named heirs previous to the death or remarriage of my wife, C., their share of my estate shall be inherited by those remaining whose names appear above, and in no event shall my daughter M. have any portion or share in my personal or real property." Held, that deceased did not die intestate as to the remainder after a life estate in the widow, but that on her death or remarriage the property passed absolutely to the heirs named.

Proceeding for the probate of the will of Carl Sohn, deceased. Mary Sohn, a daughter of the testator, filed objections to the probate of his will, but upon the hearing withdrew the objections to the probate, but demanded that the will be construed to be an effectual disposition of the real and personal property of the testator only for the life of Caroline Sohn, testator's wife, that only a life estate is created by the will, and that as to the remainder the deceased died intestate. The will, omitting the formal part, is as follows: "I give, devise, and bequeath to my wife, Caroline Sohn, tohave full control of all my real and personal estate during her natural life, or so long as she may remain my widow, but, if she should remarry, her control and interest in my property is to cease, and shall pass to the heirs hereinafter named, viz. Charles F. Sohn, George W. Sohn, Louisa Pugh, wife of William Pugh, Dora Sohn, Lena Sohn, Leonard Sohn, my grandson, son of Sophia Sohn, deceased; all the above-named children and grandchild to share and share alike. In the event of the death of any of the above-named heirs previous to the death or remarriage of my wife, Caroline, their share of my estate shall be inherited by those remaining whose names appear above, and in no event shall my daughter Mary Sohn have any portion or share in my personal or real property."

William C. Prescott, for proponent.

Henry F. & James Coupe, for contestant.

SHELDON, S. The intention of Carl Sohn that his daughter Mary should not inherit any of his real estate or share in his personal property after his death cannot be doubted, for, not content with leaving her name out of the list of the recipients of his prop

erty, he added his emphatic declaration to that effect in the concluding clause of his will. It cannot be supposed, therefore, that he intended to die intestate as to any of his property. All parties agree that the decedent by this will has given his real and personal property to his wife for life, but her life estate is subject to be defeated by her remarriage. The contestant says the only further provision is contained in the literal reading of the words, "but, if she should remarry, her control and interest in my property is to cease, and shall pass to the heirs hereinafter named, viz.;" that is, the life estate of Caroline Sohn should upon her marriage pass as an estate per autre vie to the "heirs hereinafter named," and of course terminate upon her death, thereby making an intestacy as to the remainder, as according to such construction there is only a life estate disposed of by the will. But such construction leaves meaningless the provision made for a case where one or more of the remainder-men should die before the termination of the life estate, for I think it must be assumed that the testator by the words "their share of my estate" refers to the share given them by this will, which upon the construction of the contestant would be nothing prior to the death or remarriage of Caroline Sohn. I think the various provisions are harmonized, and the clear intention of the testator expressed and made effectual, by supplying the words "or die" after the word "remarry," and the word "it" after "and" and before "shall pass," so that the clause will read, "but, if she should remarry or die, her control and interest in my property is to cease, and it shall pass to the heirs hereinafter named." The two events, death or remarriage of the widow, are coupled in the will in carving out the first estate. They are coupled also in providing for the event of the death of one or more of the remainder-men previous to the termination of the life estate, and there can be no doubt but that it was by mere inadvertence that the two events were not coupled in the clause which specifies who should receive the property when it should pass from the first taker. It seems to me a very narrow, technical, and unnatural construction to suppose that the testator intended to give to the persons named in the second clause nothing except in the event of the remarriage of his widow, and in that case only the enjoyment of the property, divided among six takers, for the remainder of her life, leaving intestacy as to the fee. the opinion of the court by Finch, J., in Phillips v. Davies, 92 N. Y. 204, is found a statement of the rule of construction which supports the view which I have concluded must be taken of this will. The language of the opinion is as follows:

In

"If such was the real meaning and intention of the testatrix, if an examination of the whole will forces that conviction, if its plain and definite purposes are endangered by inapt or inaccurate modes of expression, and we are sure that we know what the testatrix meant, we have a right, and it is our duty, to subordinate the language to the intention. In such a case the court may reject words and limitations, supply them or transpose them, to get at the correct meaning;" citing Pond v. Bergh. 10 Paige, 140; Drake v. Pell, 3 Edw. Ch. 252; Mason v. Jones, 2 Barb. 229.

The same rule is stated in Riker v. Cromwell, 7 N. Y. St. Rep. 316; Roe v. Vingut, 117 N. Y. 204, 22 N. E. Rep. 933; Vanderpoel v. Loew,

7 N. Y. St. Rep. 304; Austin v. Oakes, (Sup.) 1 N. Y. Supp. 307; Holt v. Jex, Id. 195. An estate may undoubtedly pass by implication. Jackson v. Schauber, 7 Cow. 195; Willis v. Lucas, 1 P. Wms. 472. The law prefers a construction of a will which will prevent a partial intestacy to one which will permit it. Vernon v. Vernon, 53 N. Y. 351; Thomas v. Snyder, 43 Hun, 14. This rule of construction is especially applicable to a case like the present, where the testator has in his will declared a purpose which a partial intestacy would thwart.

I am therefore of the opinion that the legal effect of the disputed provisions, and the true construction, is that the will gives an estate for life to the widow, which is liable to be terminated by her marriage, and that upon her death or remarriage the property passes absolutely to Charles F. Sohn, George W. Sohn, Louisa Pugh, wife of William Pugh, Dora Sohn, Lena Sohn, and Leonard Sohn, son of Sophia Sohn, in equal shares, subject, however, to the contingency specified and provided for in the will. A decree should be prepared

in accordance with the foregoing opinion.

(4 Misc. Rep. 349.)

In re LUCY'S ESTATE.

In re MURPHY et al.

(Surrogate's Court, Herkimer County. July 11, 1893.)

TENANTS IN COMMON-CARRYING ON JOINT BUSINESS-RIGHTS AGAINST ESTATE OF COTENANT.

Decedent and another, tenants in common of a farm and dairy, agreed that, during the year 1891, decedent should conduct the farm and dairy. and should have seven-tenths of the products; the other to have threetenths. The proceeds of the sale of the products were, by consent, paid to decedent, and after his death to his estate. Held, that the other tenant in common should be paid his share of the profits of the business out of the money received by decedent from the sale of the farm and dairy products, and, if necessary, out of the proceeds of any property owned by the parties in common, and that the administrators should retain the balance, only, for division among general creditors.

Proceeding for the judicial settlement of the accounts of Bridget Lucy and John C. Murphy, as administrators of Cornelius D. Lucy, deceased.

On January 1, 1891, Ambrose Arnold and Cornelius D. Lucy were the owners, as tenants in common,-each owning an undivided half,-of a farm of 160 acres, and a dairy of 40 cows upon it, situated in the town of Fairfield. N. Y. On or before January 1, 1891, Arnold and Lucy entered into an agree ment that Lucy should during the year 1891 carry on and conduct a dairy and general farming business with the said farm and dairy, and that Arnold should have three-tenths, and Lucy should have seven-tenths, of the products of the farm. The principal product of the farm was cheese, and by agreement the milk produced from the dairy of the farm was taken to a cheese factory, and, with the milk of many other patrons of the factory, made into cheese, which cheese, after being cured, was sold by the salesman of the factory, and the money received for it checked out to the patrons in proportion to amount of milk contributed. The milk from the farm of Arnold and Lucy was credited at the factory, by consent, to Lucy, and the proceeds paid to

him during his life, and after his death to his administrators. Lucy carried on the farm business from January 1,.1891, to the time of his death, which occurred October 17, 1891, and after his death his widow, Bridget Lucy, on November 2, 1891, was, with John C. Murphy, appointed administratrix of Lucy's estate, and the administrators carried on the farm business to January 1, 1892. Of the products of the farm, aside from cheese, a portion was sold by Lucy, and the remainder by the administrators; and none of the moneys received from the business were kept separately from other moneys, either by Lucy or the administrators, and nothing has been paid to Arnold on account of his share in the products of the farm. The amount of money received by Lucy, in his lifetime, from sales of cheese by the factory, was $577.93; from sale of butter, was $50; from sales of pigs and pork, was $40; from sales of calves, was $44. After Lucy's death, his administrators received from sales of cheese made by the factory, from milk taken to the factory before the death of Lucy, $225.31, and from milk taken to the factory after the death of Lucy, $182.56. The administrators also received from sale of butter from the farm $10, and from sale of pigs and pork $39. At some time during the year 1891, Lucy sold a bull from the dairy, which was owned equally by Arnold and Lucy, and received the price, which was $25. In 1892, Ambrose Arnold died, and Thomas Arnold was appointed administrator of his estate. At the time of Lucy's death the money found in his possession was only $100. The first money received from the cheese factory by the administrators was $90, received by Mrs. Lucy, and paid out by her. The other cheese, butter, and pork moneys received by the administrators were mingled with the moneys received from sale of cows, horses, and farming implements, etc. Part of the debts, the funeral expenses, and expense of administration, have been paid from this fund by the administrators. On July 30, 1892, Nathan B. Arnold recovered a judgment against the administrators in the supreme court for the sum of $4,771.46, to be paid, in due course of administration, out of the assets. This proceeding is the final accounting of the administrators, and the foregoing facts have been stipulated by all parties, except those in default; and the same parties have stipulated to waive all question of jurisdiction of the surrogate to determine the questions presented. The administrator of the estate of Ambrose Arnold claims that three-tenths of the proceeds of the farm products, viz. $350.64, should be paid him in full. This claim is controverted by Nathan B. Arnold, who contends that it must be treated as an ordinary debt, to be paid ratably with the other debts against the decedent.

P. H. McEvoy, for administrators.

R. H. Smith, for Nathan B. Arnold.

A. M. Mills, for administrator of Ambrose Arnold.

SHELDON, S. It is well settled that a tenant in common of either personal or real property may have an action against his cotenants, in a court of equity, for a partition of the common property, and, if the interests of the parties require it, such partition will be made by a sale of the property, and a division of the proceeds. Tinney v. Stebbins, 28 Barb. 290; Tripp v. Riley, 15 Barb. 334; Andrews v. Betts, 8 Hun, 325; Shehan v. Mahar, 17 Hun, 130; Prentice v. Janssen, 7 Hun, 86; Smith v. Smith, 10 Paige, 470. Where one tenant in common has the occupation and enjoyment, merely, of the whole of the common property, without any agreement with his cotenant, express or implied, to render anything for the use, and receives nothing in the nature of rents and profits from the use, of the property, he cannot be called upon by his cotenant to account or pay for the use and occupation, but if he receives rents and profits he may be called to account for them, in an action for partition, (McCabe v. McCabe, 18 Hun, 154; Scott v.24N.Y.s.no.4-23

v. Guernsey, 48 N. Y. 124,) and such rents and profits are, upon partition, a lien upon the share of him from whom they may be due, (Id.) If one tenant in common, with the assent of the other, lays out his money in repairs or improvements upon the common property, or if, by agreement, the common property is used for the purpose of making a profit, either tenant in common may have an accounting, in equity, of the rents and profits and disbursements; and the tenant in common to whom there is found a balance due will have an equitable lien upon, and right to reimbursement out of, the share of the common property, from whom such balance is found due. Green v. Putnam, 1 Barb. 500; Prentice v. Janssen, 7 Hun, 86; Dyckman v. Valiente, 42 N. Y. 564; Mumford v. Nicoll, 20 Johns. 634; Willard, Eq. Jur. 106; Wright v. Wright, 59 How. Pr. 186. The reason of the rule is well stated by Merwin, J., in the case last cited, as follows:

"The increase of rents are common property, as much as the principal or the original estate. When one. therefore, takes of the increase or rents, he takes a part of the common fund or property; and it may well be said that there is an implied agreement to have what he has received applied on his share, or that, on division, he will bring it in. to the end that it may be charged to him on division, and that a court of equity works out this result through the operation of an equitable lien."

When an agreement is made between tenants in common for the use of the common property, and sharing the profits obtained from such use, the tenants in common do not become partners, generally, although such relation is sometimes called a special partnership for the particular adventure. Thus, in Mumford v. Nicoll, before cited, Chief Judge Spencer, who wrote the prevailing opinion, says:

"I must not be supposed to overrule the distinction between partners in goods and merchandise, and part owners of a ship. The former are joint tenants, and the latter are, generally speaking, tenants in common, and one cannot sell the share of the other. But I mean to say that part owners of a ship may, under the facts and circumstances of this case, become partners, as regards the proceeds of the ship; and, if they are to be so regarded, the right of one to retain the proceeds until he is paid what he has advanced beyond his proportion is unquestionable."

The gist of the decision in Mumford v. Nicoll is stated and approved by Foster, J., in Dyckman v. Valiente, above cited, as follows:

"And in Mumford v. Nicoll, 20 Johns. 611, it was held that where one of two part owners of a ship receives or gets possession of the whole funds of a vessel, and of the voyage, he has a right to retain them until he is paid or indemnified for what he has advanced or paid, more than his share, for outfits, repairs, or expenses of the vessel, for the particular voyage or adventure."

Although an agreement between tenants in common for the use of the common property for the purpose of making a profit or income to be divided may not constitute a partnership, yet, after the undertaking has been commenced, the rights and liabilities of the parties are to be determined upon the same principles as are applied by courts of equity to partnership transactions. King v.