APPEAL by the plaintiff, Peter Bellinger, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Saratoga on the 16th day of January, 1911, upon the decision of the court, rendered after a trial at the Saratoga Special Term, dismissing the complaint.
The plaintiff brought this action for the partition and sale of real property, one-half of which belonged to him and the other half to his wife in her lifetime. She made a will of which the disposing parts are as follows:
' First. After all my lawful debts are paid and discharged I give, devise and bequeath to my faithful and beloved husband, Dr. Peter Bellinger, the use and income of all my real and personal estate during his natural life.
'Second. After the death of my husband Dr. Peter Bellinger, I give and bequeath to the American Baptist Home Mission Society formed in New York in the year eighteen hundred and thirty-two, the sum of Two Thousand Dollars for the general purposes of the society. This bequest, however, subject to the following conditions, namely: That the said Society shall pay to James L. Rowland, if living when this will is probated, an amount equal to five per cent of said sum annually during the life of said person.
' Third. I give and bequeath to Charles S. Waring the husband of my deceased daughter, Charlotte E. Bellinger, the sum of One Thousand Dollars should he be living at the time of my death, said sum to be paid to him within three years after my death without interest; this provision is to give my executors ample time to dispose of my estate to the best advantage and convert it into available funds. I bequeath to him also my deceased daughter's pictures painted by herself, and not to be removed until after my husband's death.
'Fourth. I give and bequeath to Cora E. Scott, artist, my gold watch.
'Fifth. I give and bequeath to my beloved niece, Mary W. Taylor, wife of Rev. Wm. C. Taylor of Ilion, N.Y. , all my wearing apparel and all my personal effects of that nature.
'Sixth. All the residue and remainder of my estate (including the sum named for Charles S. Waring should he be dead at the time of my decease) I direct my executors to have divided into three equal parts and these to be distributed as follows: One part to my niece, Mary W. Taylor; one part to my nephew Wm. R. Waterbury, and one part to be divided equally between Norma Rose Waterbury and Howard Ernest Waterbury, children of my deceased nephew Rev. Norman M. Waterbury.'
Aside from her one-half interest in the real estate she had personal property of the inventoried value of $373.75. She died in the year 1895. In December, 1897, the executors filed a petition for a judicial settlement of their accounts. The citation was served upon all the legatees and devisees named in the will. The decree recites that a question was presented whether the legacies of $2,000 and $300 to the American Baptist Home Mission Society were more than one-half of the estate of the deceased. The surrogate held that the real estate was by the terms of the will converted into money, and the executors accounted for it as so much money, deducting therefrom the estimated value of the life estate of the husband therein, and decreed a distribution of the same after the husband's death among the various legatees and devisees. Upon this trial the court has held, in substance, that by the decree of the surrogate the real estate has become personal property
so that the plaintiff cannot maintain an action for the partition thereof, from which judgment this appeal is brought.
Irving W. Wiswall [William Rooney of counsel], for the appellant.
Butler & Kilmer [W. P. Butler of counsel], Slade, Harrington & Goldsmith [John A. Slade of ...