Mills v. . Hoffman , 92 N.Y. 181 ( 1883 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This case comes here upon an appeal from the judgment of the General Term, affirming a decision of the surrogate of Cayuga county in favor of the petitioner, Frances Hoffman.

The proceeding was commenced before the surrogate by petition filed in May, 1880, by one of the next of kin, to compel an accounting by an administrator, and was heard from time to time until the 31st day of May, 1881, when he rendered the decree appealed from.

The case shows that the appellant, at the close of the evidence, requested the surrogate to find upon certain questions of fact in accordance with the provisions of section 2545 of the Code of Civil Procedure, and he having refused to so find except as such facts were embodied in his decree, the appellant excepted to such refusal. We think this exception was not well taken.

By subdivision 11 of section 3347 of the Code of Civil Procedure all proceedings pending in Surrogates' Courts upon the 1st day of September 1880, were especially excepted from the operation of any of the provisions contained in chapters 14, 15, 16, 17, 18, 19 and 20 of such Code. Section 2545, being a part of chapter 18 and thus excepted, did not, therefore, apply to this proceeding.

But we are further asked to review the conclusions reached by the surrogate upon the uncontradicted evidence in the case upon exceptions taken thereto by the petitioner.

In order to present these questions clearly a statement of the circumstances out of which this controversy arises is necessary.

The petitioner claims as one of the heirs at law and next of kin to David N. Follett, deceased. Follett died on the 13th day of May, 1854, leaving a large estate, consisting of both real and personal property. In 1851, he made his will, by which he devised and bequeathed the whole of his property to his wife, Mary A. Follett, and his eight children, Charles P., David, James A., Triphena, Amelia, Mary, Fidelia M. and Fanny Jane Follett, who were born prior to the execution of the will. Preston Thompson, Jesse H. Foreman and Lee Oglesbie were named as his executors. The petitioner, whose maiden name was Frances R. Follett, was born in October, 1853, after the execution of the will, and so far as her rights were concerned, her father died intestate. After the testator's death his will was duly proved, and Lee Oglesbie and Jesse H. Foreman alone qualified and acted as executors under it. A large amount of property came into the hands of these executors, and they continued in the administration of the estate until 1863, when they died. Neither of them rendered an account of their administration of the estate. After their respective deaths, on November 19, 1863, the appellant, William B. Mills, was appointed administrator, with the will annexed, of the testator, and received into his hands such portion of the estate as he could recover, and continued in the administration thereof until 1869, when, under a judgment of the Supreme Court, purporting to determine the rights of all of the parties interested in the estate, he settled with and paid off each of the heirs and legatees of the testator, and was discharged from its further administration. In July, 1854, one Levi Colvin was appointed by the surrogate as the general guardian of the infant children of D.N. Follett, including Frances R. Follett, the petitioner, and continued to act as such guardian until July, 1869, when the petitioner, having arrived at the age of fourteen years, selected and the surrogate appointed one Harvey C. Beach as her guardian. Beach continued to act as such guardian until October, 1874, when the petitioner arrived at majority. The affairs of the estate having become greatly complicated, owing to the infancy of many of the persons interested therein, the birth of issue subsequent to the execution of the will, the decease of the executors before they had rendered an account, the necessity for the support of the infants during minority by their mother, Mary Ann Follett, and the existence of her dower rights, the action referred to was commenced in November, 1867, in the Supreme Court by James A. Follett, one of the legatees under the will, against Mary Ann Follett; the administrator, William B. Mills; Frances R. Follett, the petitioner, and Levi Colvin, her general guardian, and all other heirs at law and devisees of David N. Follett, deceased, with a view of determining their respective rights in the estate, the amount thereof still remaining subject to division and distribution, the persons who were liable therefor, and the respective amounts for which they were so liable, and for an accounting by the administrator, and the payment by him to the parties entitled thereto of the amount which should be found in his hands. Calvin R. Aldrich, an attorney of the Supreme Court, was appointed guardian ad litem for the petitioner in the action. Each of the other defendants also appeared, and the action resulted in a decree rendered July 12, 1869, whereby among other things it was adjudged that the appellant, William B. Mills, had certain moneys in his hands belonging to the petitioner, and requiring him to pay the same to her, and that upon the payment thereof and complying with the other provisions of such judgment he should be released and discharged from all claims and demands against him as administrator of the estate. The record shows that after the rendition of said judgment the appellant fully performed all of the obligations therein enjoined upon him and paid over to Harvey C. Beach, the general guardian of the petitioner, the moneys thereby directed to be paid to her. Other defendants who were also adjudged to pay moneys arising out of the estate to the petitioner, paid them to her general guardian in July, 1869. The provisions of the judgment seem to have been complied with by each of the parties who were required to perform any act necessary to a complete final settlement of the estate and of the rights of the respective parties interested therein. After the petitioner had arrived at majority, in July, 1875, she commenced proceedings in the Supreme Court to vacate this judgment upon the ground that the appointment of a guardian ad litem for her in the action was irregular, and that the court did not thereby acquire jurisdiction to render judgment against her therein. This proceeding resulted in an order, on October 26, 1875, vacating the judgment so far as it affected the petitioner.

It is claimed by the petitioner, notwithstanding the receipt by her general guardian of the sums awarded to her by the judgment, that by reason of this order she was entitled to require the appellant to account before the surrogate as to his entire administration of the estate. Assuming that she is correct in this contention, and that such judgment has been deprived, so far as she is concerned, of any force as an adjudication of the questions involved in this controversy, she could, nevertheless, upon arriving at majority, ratify the acts of her general guardian and estop herself from controverting either the validity of the judgment of which she had received the benefits or the settlements made thereunder. The judgment operated after its rendition as a contract between all of the parties to the action, and whether the same was void or voidable, the several parties thereto still had the power to give it validity by assenting to its terms or accepting the benefits which it conferred.

A principal cannot accept the benefits of an unauthorized contract made by an agent and repudiate its obligations. Neither can a party enjoy the rights awarded to him by a judgment and deny its force as an adjudication. (Wood v.Seely, 32 N.Y. 105; Sherman v. McKeon, 38 id. 266; Paine v. Hubbard, 6 Wis. 175; 1 Redf. Surr. Rep. 276.)

The undisputed facts in the case show that the petitioner, with full knowledge of the terms of the judgment, received from her guardian, Harvey C. Beach, after arriving at her majority, the moneys which had previously been paid to him by the appellant in satisfaction of the amount thereby awarded to her. It also appeared that in 1876 she received other moneys from her guardian, which the same judgment required other defendants to pay to her, and which they had previously paid in compliance with such requirements. And, finally, after all these settlements had been made, and nearly four years after the judgment had been vacated as to her, this proceeding was commenced by the respondent before the surrogate to compel the appellant to account.

In view of all the circumstances of this case, we think that the court below erred in holding that the appellant could again be called upon to account for his administration. It is quite certain that he could not recover back the moneys which he had paid in obedience to the judgment, for the purpose of settling the estate, to any of the parties to the action. Not only had six years elapsed after such payments were made before the judgment was vacated, but the moneys which the appellant had paid the petitioner's representative had been paid over to her before this proceeding was instituted. Neither was the judgment vacated as to any of the parties except the petitioner, and as to them it still remains in force. Moneys paid to them were certainly not recoverable by him as a consequence of the order obtained by the petitioner.

It appears, therefore, that the petitioner has now moneys in her hands which she has received from the appellant solely by force of the judgment in question, and claims to repudiate the obligations of the same judgment under which he paid those moneys.

This we think she cannot do. The receipt by her of such moneys was an unequivocal act of ratification, made with full knowledge of the circumstances, and at a time when she was capable of binding herself, and she cannot now be permitted to deny the validity of an act which she has thus ratified and confirmed.

For these reasons we think the judgment of the surrogate and of the General Term should be reversed, and judgment for a dismissal of her petition, with costs, rendered against the petitioner.

All concur.

Judgment accordingly.