PARKER, Ch. J.

This action was brought by Abraham Snider, individually and as executor of the last will and testament of his father, Michael Snider, to recover of the estate of his brother, Michael G. Snider, the sum of $2,500, received by the latter under and by virtue of a provision of the will of Michael Snider, reading as follows: "I give and bequeath the sum of two thousand five hundred dollars to my son Michael G. Snider, to be paid to him by the executors of this my will, and to be held, used and enjoyed by him, my said son, during his life, and at his death to his heir or heirs, should he have any. Should he die without issue, I give and bequeath said sum of two thousand five hundred dollars to my son Abraham."

We agree with the learned Appellate Division that the gift to Michael was only of a life estate, the principal to go to Abraham upon the death of Michael without descendants, the term "his heir or heirs," in the connection in which it is used, meaning "heirs of his body," and we should have affirmed upon the opinion of that court but for the contention of the appellant that the amount of the legacy should have been charged in the first instance by the judgment upon the farm devised by Michael G. Snider to two of the sons of the plaintiff, resort being had to the rest of the estate for the collection only of such portion of the judgment as the proceeds of a sale of the farm should fail to satisfy. It does appear that Michael G. Snider invested the $2,500 in the farm referred to, which was of the value of between $10,000 and $13,000, but, notwithstanding these facts, the record does not permit this court to pass upon the question suggested.

The persons to whom Michael G. Snider devised the farm were not made parties to the action at the time of its commencement, nor were they subsequently brought in as they might have been. It is true, as the appellant urges, that they might have been made parties upon the application of the plaintiff, and it is also true that it was within the power of the trial court, upon its own motion, to bring them in by its order, and had the defendant directed the attention of the court to the matter, and it had then neglected or refused to bring them in, an exception taken thereto would have presented the question, whether it was the defendant's right, under the evidence, to have them brought in, to the end that the rights of all the parties might be determined. A careful examination of the record fails to disclose, in the voluminous and carefully prepared answer, in the objections taken, or in the statements addressed by counsel to the court, that it was then his claim that the farm should first be devoted to the payment of the amount of the legacy, and that in order to accomplish that result it was necessary that the devisees of the farm should be made parties. On the contrary, when the defendant's counsel introduced the evidence relating to the farm and its value, objection was made to its introduction, and the court inquiring the purpose of it, counsel answered: "It is a defense; we say in our answer that there was an arrangement by which this matter was adjusted afterwards;" thereupon the objection was overruled and the answer permitted. Objections to other questions were interposed, and the court in overruling one of the objections said: "I will only permit it on the same line that there is to be some proof connecting it." Thus we see that the case was not tried upon the theory that the legacy should be charged upon the real estate, in the improvement of which it was expended, and, hence, the case is well within the rule that on appeal a party must be held to the theory of his trial. ( People ex rel. Warschauer v. Dalton, Commr., etc., 159 N.Y. 235; Drucker v. Man. Ry. Co., 106 N.Y. 157; Baird v. Mayor, 96 N.Y. 567, 603; Stapenhorst v. Wolff, 65 N.Y. 596; Home Ins. Co. v. Western Trans. Co., 51 N.Y. 93.)

This court is not, therefore, at liberty to pass upon the question pressed upon its attention, whether in equity the farm, in the improvement of which the legacy was invested, is primarily liable for its payment.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.