Ackley v. Dygert , 33 Barb. 176 ( 1860 )

By the Court,

Knox, J.

The objection, that the exemplification of the will of Henry Kennedy was improperly received in evidence, was not well taken. The will bears date August 21st, 1820, and was proved before 1830. ■ Chapter 94, of Laws of 1850, as amended in 1852, (see 2 R. S. 4th ed. 650, 1035,) provides that the exemplification of the record of any last will and testament, proved before the surrogate of any county in the state, before the first day of January, 1830, certified under the seal of the officer having the custody of such record, shall be received in evidence, with the like effect as if the original will had been produced.

The construction which the defendant’s counsel puts upon this statute, to wit, that proof of the execution of the original will must be first made, before the exemplified copy can be read, entirely nullifies the act. Of what use would thi,s copy be, if the original were present and proved ? The statute was passed to save the necessity of proving the original will, where it had been already proved before the surrogate, if or was the objection well taken, that the plaintiff, at the close of the evidence on her part, had failed to prove title in herself to the premises.

By the will of Henry Kennedy all his real estate was devised to his sons, William Kennedy and Hiero Kennedy. William died in 1834, leaving two children, of whom the plaintiff is one. Hiero died before 1837, leaving a will, by which, among other things, he devised to Anna Kennedy, his mother, all his real estate for life. A partition was made between the parties, and the premises described in the complaint set off to the plaintiff. It was shown that Anna Kennedy was dead, and that the defendant was in possession of 40 acres of the land described in the complaint.

The objection that Anna Kennedy, “ as widow,” had no right to institute the proceedings for partition, is groundless; as she, as before observed, had a life interest in an undivided half of the real estate of which her husband died seised, by virtue of the will of her son Hiero; and might therefore petition for a partition..

This brings me to the real question, upon which the case must be decided. The defendant derives title to the premises in -dispute, by virtue of proceedings instituted by Maria Kennedy, widow of William. Kennedy, who was the father of the plaintiff, and John Ostrander, administrators of William’s estate, for the sale of his real estate for the payment of debts. The first inquiry is, “ Did the surrogate get jurisdiction of the subject ?”

As to the proceedings for a sale, commenced November 17, 1836, I think there can be no doubt that the surrogate did not gain jurisdiction of the subject. The statute required that the petition should set forth, 1st. The amount of personal property which had come to the hands of the administrators ; 2d. The application of it; 3d. The debts outstanding against the testator or intestate, so far as the same can be ascertained; 4th. A description of all the real estate of. which the testator or intestate died seised, with the value of the respective portions, or lots, and whether occupied or not, and if occupied, the names of the occupants; and 5th. The names and ages of the devisees, if any, and of the heirs of the deceased. (2 R. S. 39, 2d ed.)

It will be seen that the petition presented complies with the statute in but one particular, to wit, in stating the amount of the outstanding debts. The case says that the petition did describe a number of parcels of real estate, among which is the piece described in the plaintiff’s complaint; but this does not .approach to a compliance with the requirements of the fourth subdivision of section two of the statute.

Section 3d of the statute required the surrogate to appoint some disinterested freeholder guardian of any minor interested in the proceedings, if it should appear that there were any. The plaintiff was then a minor, but no guardian was appointed. It is true that it did not appear by the petition that she was an heir or devisee; but, I apprehend that a person cannot be divested of his property by being ignored. He has a right to “ a day in court,” before this power can be rightfully exerted.

Within all the cases, and they are numerous, hearing upon this question, I think that the surrogate obtained jurisdiction, neither of the subject matter, nor of the person of the plaintiff. (Bloom v. Burdick, 1 Hill, 130. 3 Barb. 341. 20 Wend. 241.)

These cases hold the language, substantially, that the surrogate’s court, being a creature of the statute, not a court of unlimited original jurisdiction, those who claim under its decrees must show that the facts, upon which he acted, gave hint jurisdiction.

Bronson, J.,

in one of the cases cited, says : “ The rule

that there must be jurisdiction of the person, as well as the subject matter, has been steadily upheld by the courts, and it cannot be relaxed, without opening a door to the greatest injustice and oppression.” “ In any form in which the ques- , tian has arisen, it has been held that a statute authority by which a man may be deprived of his estate must be strictly pursued.” The order made the 14th of January, 1839, for the sale of the real estate of William Kennedy, was altogether void. It was based upon no petition whatever, nor was there an order to show cause. I can find no warrant in the statute for an order directing the sale of the intestate’s property, on the ground, merely, that after the distribution of tbpipr&r..^ ceeds of a former sale there is a deficiency in the sum^itóuulB ing, for the payment of debts. In such a case there/must be new proceedings instituted, ^JPj7;,

Kor can I see how the order of sale, of June )345, can be sustained. Considering, as the defendant v tiivlAj/ us, the proceedings upon which the order was granw^, rits continuation of the original application,” we have seen tnáí they rest upon no foundation. Treated as an original proceeding, it is liable to the same objection, to wit, the petition does not state facts sufficient to give jurisdiction ; that is, it does not state that an inventory was filed, or that there were debts which the personal property was insufficient to pay.

But it is claimed that the statute of 1850 (ch. 82, 2 R. S. 4th ed. p. 290, §§ 37, 38) covers all the defects in these different proceedings. These sections are as follows:

“ § 37. Every sale heretofore made, or hereafter to be made, under any of the provisions of the fourth title of chapter six of the second part of the revised statutes, and of the acts amending the same, or in addition thereto, shall be deemed; and held to be, as valid and effectual as if made by order of a court having original general jurisdiction ; and the title of any purchaser, at any such sale made in good faith, shall not be impeached or invalidated by reason of any omission, error, defect or irregularity in the proceedings before the surrogate, or by any allegation of want of jurisdiction on the part of such surrogate; except in the manner and for the causes that the same could be impeached or invalidated, in case such sale had been made pursuant to the order of a court of original general jurisdiction.

§ 38. ¡No such sale under any of the provisions of the fourth title of chapter sixth of part second of the revised statutes, and of the acts amending the same, shall be invalidated nor in any wise impeached 'for any omission or defect in any petition of any executor or administrator under the provisions of said title and acts amending the same, provided such petition shall substantially show that an inventory has been filed, and that there are debts, or is a debt, which the personal estate is insufficient to discharge, and that recourse is necessary to the real estate (or some of it) whereof the decedent died seised.” ■

Erom what I have already said it will be seen that my judgment is, that if the sales under these various proceedings had been made by a court of original general jurisdiction, the plaintiff in this action would not be bound by them : but suppose that the statute of 1850 has the effect to correct and make regular and effectual the first two proceedings.

It will be observed that the premises in controversy were not sold by virtue of them ; but they were sold by virtue of the proceedings of April 26, 1845, and, as hag been already said, the petition thus presented did not show “ that an inventory had been filed,” and that there were debts which the personal estate was insufficient to discharge.” The grace ■ of the statute does not reach such a case.

[Monroe General Term, September 3, 1860.

Smith, Johnson and Knox, Justices.]

It is also said that the plaintiff, by saying she was satisfied-with, and accepting the money arising from the sale, is estopped to deny its validity. When the land was sold, the plaintiff was an infant, and could do no act to estop her from asserting- her title to the premises in dispute when she became of age. (5 Sand. 225.)

Xeither the defendant, nor any other person, was influenced by the declaration of the plaintiff, that she was satisfied with the sale, to buy the land, or to do any other act by which he will be prejudiced if the plaintiff is allowed to assert her right to the premises.

Hor are these acts on the part of the plaintiff conclusive as an affirmance of the sale. Had the plaintiff, while an infant, conveyed the property to the defendant, and taken back a mortgage, upon which, when coming of age, she had received the money, there might be some ground for saying she had affirmed the sale. But in this case the plaintiff, personally, had nothing to do with the sale of the property, and was not so much as represented by a guardian. What a court of equity might decree in a proper action, in relation to the . money received by the plaintiff, upon the mortgage, it is unnecessary to say. This is an action of ejectment, and the simple question is, in whom is the legal estate P

We think the case was properly decided at the circuit, and the judgment must be affirmed with costs.