majority"> Andkews, Ch. J.

The judgment of April 8, 1893, was interlocutory and not final. It declared the then existing rights and interests of the parties to the litigation in the land. But it divested no titles. It directed a reference for sale, for inquiry for computation and for accounting. It provided for a distribution of the proceeds of the sale based upon the several interests in the land which should be included in the sale. But the sale would become binding only upon confirmation by the court, and until confirmation the purchaser would not be required to pay the purchase money, and until the purchase • money was paid or secured there would be no fund for distribution. . The jmactice in partition proceedings of entering in the first instance an interlocutory judgment, to be followed by a final judgment upon the termination of the proceedings authorized by the interlocutory judgment, prevailed in chancery and is expressly authorized and required by the Oode. (1 Barb. Ch. Pr. 327: Clarke v. Brooks, Ct. App., 2 Abb. [N. S.] 385 ; Code of Civil Pro., §§ 1545, 1546, 1577.)

James B. Mingay as the original tenant by the curtesy was properly joined as defendant in the action. He had conveyed his life estate to the plaintiff. He was a proper party in order *454 to conclude him by a judgment, adjudging that his title had been vested in the plaintiff. When the interlocutory judgment was rendered the life estate of John B. Mingay had not terminated. It was an estate in the land, which, if he had continued in life, could only be divested by a sale of the land and the final judgment confirming the sale. If he had survived that event he would have been entitled to an interest in the proceeds, represented by a gross sum. But that sum, whatever it may have been, would have been awarded to him for his estate which passed by the sale. The interlocutory judgment is based on this view. It assumes that the estate by the curtesy will continue and be in existence at the time of the sale, and will -then be sold. It in terms directs that the “ said tenancy by the curtesy be included in the sale.” It declares that the purchasers shall hold the property free and discharged of any claim by virtue thereof. It provides for the payment of a gross sum “ in satisfaction of the said tenancy by the curtesy, to be fixed by the said referee according to the principles of law applicable to annuities.” These provisions would be absurd and unmeaning unless they contemplated that the life estate of James B. Mingay would be in existence at the time of the sale and would be extinguished thereby. If the life estate terminated by the death of the life tenant before the sale, there would be no life estate to sell; the purchasers would need no discharge therefrom; and unless the life tenant survived the sale, there would be no basis for fixing a gross sum out of the proceeds, estimated by the probable duration of life under the annuity tables, for the life would be gone. The statute also contemplates that the proceeds of sale in partition proceedings are to be ’distributed among the persons whose interests are affected by the sale. Section 1580 of the Oode declares that the proceeds of sale “ must be awarded to the parties whose rights and interests have been sold, in proportion thereto.” The death of the life tenant after the interlocutory judgment and before any further proceedings had been taken, rendered iznpossible the execution of the part of *455 the judgment directing that the sale should include the life estate and the provisions for ascertaining its value. If the subject of the jiartition had been property of which actual partition could be made, and the interlocutory judgment had provided that the life tenant should have actual possession during his life, his death would at once terminate any right under the judgment. When the judgment provides for a gross sum, and before any sale is had the life tenant dies, it would be most inequitable to charge the proceeds with the supposed value of a life which had already terminated. The case of Robinson v. Govers (138 N. Y. 425) does not justify the claim of the plaintiff. There the dowress had consented to take a gross sum, based on the value of the lands. The sum had been judicially ascertained and the court had confirmed the final report of the referee providing that the plaintiff was entitled to the sum specified. The actual entry of the order on the decision was the only thing lacking to formally complete the proceeding and constitute a perfect judgment fixing the plaintiff’s right. It was held that her death, after the decision and before the entry of the order, did not defeat the claim, and that an order might be entered as of the time when the decision was made. The proceedings in the present case had not reached the point of a final ascertainment of the sum which should be paid for the value of the life interest. The proceeding was tentative and incomplete, and the right of the life tenant to a share of the proceeds was conditional, and not fixed and absolute. We entertain no doubt of the power of the Special Term to correct the interlocutory judgment to make it conform to the new situation brought about by the death of the life tenant after that judgment was entered and before any further proceedings had been taken. It was, we think, a power inherent in the court in the interest of justice. (See McCall v. McCall, 54 N. Y. 541 ; Matter of Price, 67 id. 231; Matter of City of Buffalo, 78 id. 362.)

The orders of the General and Special Terms should be affirmed.

All concur.

Orders affirmed.

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