
    Margaret Ann O'Donoghue, Plaintiff, Impleaded with William O'Donoghue and James O'Donoghue, Appellants, Respondents, v. Annie A. Smith and Others, Respondents, Appellants, Impleaded with Others.
    
      Partition—power of the court in 1869 to entertain an action topdrtiiion real property devised to executors in trust — appointment therein of a guardian ad litem for an infant defendant under fourteen yean's of age who was served with the summons in the State of Virginia — effect of the appearance of the guardian ad litem — necessity of service on the infant.
    
    Michael O’Donoghue died in 1860, leaving a will by which he gave his residuary estate to his executors in trust to sell all the real estate and to divide the personal estate and the proceeds of the real estate into eight shares; to apply the income of one of such shares to the use of each of the testator’s eight children during then- respective minorities and, upon each of the children attaining his or her majority, to pay over to such child his or her share.
    
      The will contained provisions concerning the disposition of the share of any child dying previous to the division and.also a provision for disposing of the accumulation of the share of a child during infancy over and above the amount required for education and support.
    A codicil to the will revoked the direction and authority of the executors to sell all the testator’s real estate and confined such power to three specific pieces of property.
    In 1869 one of the testator’s children brought an action for the partition of real property which passed under the residuary clause, but which was not included in the specific pieces of property which the executors were authorized to sell. One of the testator’s daughters, who was a defendant in the action, was then under the age of fourteen years. Upon the petition of her mother, the latter was appointed guardian ad litem of the infant. An affidavit was pre-' sented to the court, at the time the guardian ad litem was appointed, to the effect that service had been made upon the infant, but it did not state when or where such service was made. At the time the partition suit was commenced the infant was in the State of Virginia and service had been made upon her there.
    After her appointment, the guardian ad litem appeared in the suit and it proceeded to a decree of partition and sale.
    
      Held, that the court had jurisdiction to entertain the partition action;
    That, under the statutes in force at the time the partition action was brought (Code Proc. § 4.48; R. S. pt. 3, chap. 5, tit. 3, §§ 1, 3), the defects, if any, in the appointment of the guardian ad litem were not jurisdictional defects, and that the appearance of the guardian ad litem in the action was equivalent to an appearance by the infant and rendered the decree binding upon her.
    
      Semble, that, unless otherwise provided, a guardian ad litem cannot be appointed for an infant defendant, unless previous service of the summons has been made upon the infant.
    Cross-appeals by the plaintiffs, William O’Donoghue and another, and by the defendants, Annie A. Smith and others, from portions of a judgment of the Supreme Court in favor of the plaintiff Margaret Ann O’Donoghue, entered in the office of the clerk of the county of New York on the 2d day of May, 1902, upon the verdict of a jury, rendered by direction of the court after a trial at the New York Trial Term, and upon the dismissal of the complaint by direction of the court as to the plaintiffs William O’Donoghue and James O’Donoghue.
    
      Charles F. Brown, for the plaintiffs.
    
      F. Arlington, for the defendants.
    
      Frank W. Hackett, for the defendant Smithsonian Institution.
   Patterson, J".:

This is an action in ejectment, the plaintiffs seeking to recover the possession of three-sevenths of the premises at the northeast corner of Washington and Keetor streets in the city of Hew York, and particularly described in the complaint, each plaintiff claiming to be entitled to an undivided one-seventh part thereof. The plaintiffs are three of the children of Michael O’Donoghue, who'd-ied April 6,1860, seized of such premises. By his last will and testament he disposed of all his estate. After giving legacies and creating' an annuity, he gave to his executors all the rest, residue and remainder of his estate, real, personal and mixed, in trust, with directions to sell.all the real estate, it being his expressed ■ intention that the same should be deemed converted into personalty from' the time of his decease. -His executors, as trustees, were "directed to pay all mortgages -and incumbrances on the real estate, and to- invest the personal estate and the proceeds of real estate, after satisfying mortgages and incumbrances,' on bond and mortgage or in the public stocks of the United States or of the State of Hew. York or of the city of Hew York, to receive the rents and profits of real estate until the same: should be sold, and to receive the income of the personalty and of the proceeds of real estate, and to divide the personal estate and the-proceeds of real estate into eight shares, to apply the interest, issue and income thereof, severally, to the use of his eight children— one share for each child during his or her minority, and upon each of the children attaining lawful age, to pay over to such child his or her equal share, with direction with regard to the share of- any child dying previous to the division, leaving descendants or otherwise. The will also contained a provision for disposing of the accumulation of the share of a child during infancy, and over and above the amount required for education and support. By a codicil to the will, which codicil was duly proven, the testator revoked the direction and authority to the executors to sell all his real estate, and confined it solely to three specific pieces of property. The locus in quo in this action is not one of those three pieces. The power of sale not applying to the premises described in the complaint in this action, the will of the testator is susceptible of the construction that trusts were created in independent shares of the testator’s infant children, and that the trust estates were inalienable during the infancy of the bejieficiaries. :

In September, 1869, John T. O’Donoghue, a'son of the testator, brought, in the Supreme Court, an action for the partition of real property of which his father had died seized, including the premises in question here. In that action Ann O’Donoghue, the widow and executrix, was made a defendant, as were also the brothers and sisters of John T. O’Donoghue, the three plaintiffs in the present action, namely, Margaret Ann, William and James O’Donoghue, being among them. At that time James O’Donoghue and William O’Donoghue were infants over the age of fourteen years. Upon their petition, their mother was appointed their guardian ad litem. Margaret Ann O’Donoghue was an infant under the age of fourteen years and it seems that on a petition of her mother, Ann O’Donoghue, the petitioner was appointed guardian ad Utem for that infant. What occurred with respect to the- appointment of Mrs. O’Donoghue as guardian for her daughter, Margaret Ann O’Donoghue, will be hereinafter referred to more in detail. The partition action proceeded to a decree. Meantime, Joseph, one of the children of the testator had died intestate. It was adjudged that the property being insusceptible of specific division or partition, it should be sold, and proceedings were had which eventuated in a sale by a referee of the premises in question here to Thomas G. Hodgkins, who complied with the terms of his purchase and received a referee’s deed of the premises, which is dated April 29, 1870. Hodgkins entered into possession under that deed and remained so in possession until the 29th of May, 1871, when he conveyed the same to Edward Smith, who, during his lifetime, made improvements upon the property of considerable value, aggregating about the sum of $30,000 or $35,000. Edward Smith remained seized of the premises until his death, in or about the year 1890. His will was proven in the Surrogate’s Court of Hew York county on April 30, 1890. By it he devised the premises in question in this action to his wife, Anna A. Smith, and to his four children. One of the children conveyed her interest to her mother and brothers, who are defendants here. These defendants are,-therefore, in possession, and claim under the referee’s deed made in 1870 to Hodgkins.

On the trial of the present action the plaintiffs contended that no title was conferred by the referee’s deed, for the reason that the proceedings in the partition suit were void and that the sale of the-infants’ real estate in partition was contrary to law and forbidden by statute. (2 B. S. 195, § 176.) That by the terms of the will of Michael O’Donoghue, the trust or trusts therein created were indestructible during the infancy of the beneficiaries and the court was-not only without power, as distinguished from jurisdiction, but was. also without jurisdiction to impair or destroy those trusts.

If the court had jurisdiction, the method by which it was exercised, as affecting the interests of the two present plaintiffs, William and James O’Donoghue, was sufficient to authorize a decree. ■ Whether the court had jurisdiction at all is a question as to which,, upon this very will, the Court of Appeals stands equally divided. (O' Donoghue v. Boies, 159 N. Y. 87.) That was an action in ejects ment, and title was claimed by the plaintiff therein under a deed in a partition action in which the same infants were defendants. The decision of that casé did not turn upon the question of jurisdiction,, but it was fully considered and discussed in very learned and elaborate opinions. We have had occasion to comment upon those opinions, and what we said in Livingston v. Livingston (56 App. Div. 484; affd., 166 N. Y. 601) has committed us to the view ■ expressed by those judges of the Court of Appeals who concluded, that jurisdiction was acquired in the partition action. The court; having had jurisdiction, and the proceedings having been such as con-formed to the requirements of law, William and James O’Donoghue: • are concluded by the decree in the partition action and are bound. ■ by the conveyance made by the referee pursuant to that décree.. We are thus led to the affirmance of the judgment dismissing the-complaint as to them.

The court below directed a verdict in favor of the plaintiff Margaret Ann O’Donoghue for the possession of an undivided one-seventh part of the property described in the complaint and for the-sum of $11,330, that being, by stipulation, one-seventh of the rents- and profits of the premises. The important question is as to the-right of the plaintiff Margaret Ann O’Donoghue (now Trigg) to. recover at all. Her contention, recognized by the court below, is-that jurisdiction never was obtained over her, and, consequently, no-authority was ever acquired to sell or dispose of her interest in the' premises described in the complaint.

The specific ground of this contention is, that the appointment of her mother as her guardian ad litem was without authority, was void, and may be attacked collaterally. If that appointment were a mere irregularity, it could not be taken advantage of at this late day, as appears to have been decided in Parish v. Parish (175 N. Y. 181). But the real inquiry is whether the défect in the appointment of a guardian ad litem for this infant defendant, if one exists, is a jurisdictional defect. The solution of that question depends upon the law as it existed at the time the partition suit was brought. At that time the law applicable to the appointment of a guardian ad litem in such a suit was to be found in the Code of Procedure and in the Revised Statutes. It may be assumed that it is a general rule in all actions, unless otherwise provided, that a guardian ad Utem cannot be appointed for an infant defendant unless previous service of the summons has been made upon such infant in the manner specifically pointed out in various provisions of the Codes of Procedure. But with respect to an action of partition, brought in 1869, the provisions of the Revised Statutes relating to the partition of lands were in force. By section 448 of the Code of Procedure, it was enacted that the provisions of the Revised Statutes relating to the partition of lands, etc., shall apply to actions for such partition brought under that Code, so far as the same could be so applied to the substance and subject-matter of the action, without regard to its form. It was held in Varian v. Stevens (2 Duer, 637) that the appointment of a guardian ad litem in a partition suit was regulated by the Revised Statutes in relation to the partition of lands and must" be made by the court. The sections of the Revised Statutes applicable were the 1st and 2d sections of title 3 of chapter 5 of part 3, entitled Of the partition of lands owned by several persons.” It was enacted by section 1 that when several persons held lands, etc., as joint tenants or tenants in common in which one or more of them should have an estate of inheritance, any one of' them, being of full age, might present a petition to a court designated for a division and partition of the premises according to the respective rights of the parties interested and for a sale of the premises if actual partition could not be made, and by section 2 it was provided that if it should be represented to the court by any party intending to make such application that there were any minors who should be parties to the proceedings and it should be satisfactorily proved to the court that at least ten days’ notice had been served upon such minors as reside within this State or upon their general guardians of an intention to apply to such court for the order therein mentioned, such court should thereupon appoint a suitable and disinterested" person to be guardian for one or more of such minors, whether-the said minors should reside in or out of this-State, for the special purpose of taking charge of the interests of such minors in relation to the proceedings for a partition.

' Under the provisions of the Be vised Statutes it was held in Gotendorf v. Goldschmidt (83 N. Y. 110) that a guardian ad litem for infant parties in a.partition suit might be appointed without the prior service of a summons on such infants, and in commenting upon that case in Ingersoll v. Mangam (84 N. Y. 622, 627) the Court of Appeals said: “ The provisions of the Be vised Statutes relating to the partition of lands were by section 448 of the Code of Procedure made applicable to - actions for partition so ■ far as. the same could be applied to the substance and subject-matter of the action without regard to form; and in. Gotendorf v. Goldschmidt (83 N. Y. 110) it was held that under the provisions of’ the Be vised Statutes and of the Code in force when that action was commenced, personal service of the summons upon an infant defendant in an' action for partition was not essential to give the court jurisdiction.” Ingersoll v. Mangam was a foreclosure suit, in which it was held that jurisdiction was not acquired by the appointment of a guardian ■adlitem for an infant defendant without previous service - of a. summons on the infant. The remarks above quoted -were made to point out the difference between such an action and one in partition.

How far the law has been changed or modified since the enactment of the Code of Civil Procedure it is unnecessary to inquire. The petitioner in the partition suit, under which rights are claimed in this case,was interested in the estate. An affidavit was presented to the court at the tiitie her appointment as guardian ad litem was made, to the effect that service had been made upon the infant. defendant, but when or where was not stated. The application was not made by the plaintiff in the partition suit, but the facts were put before the court. The method by which the application came before the court was an irregularity. It appeared on the trial of the presént action that the infant, Margaret Ann O’Donoghue, at the time of the commencement of the partition suit, was in Virginia, and that the service had been made on her there, but, as remarked in Gotendorf v. Goldschmidt (supra), there was no requirement in the Revised Statutes that service should be made upon non-resident minors at all. A failure to comply with merely directory matters in that statute would constitute an irregularity, and would not go to the jurisdiction. After the appointment of the guardian ad litem in that action she appeared therein, and that was equivalent to an appearance of the infant.

We think, therefore, that the interest of the plaintiff Margaret Ann O’Donoghue was represented in the partition suit, and that the decree was binding, upon her, and that the purchaser at the sale acquired title to that interest, and that the judgment awarding to her possession of the property and mesne profits should be reversed and a new trial ordered, with costs to abide the event.

The judgment dismissing the complaint on the merits as- to William and James O’Donoghue is affirmed, with costs, and the judgment in favor of the plaintiff Margaret Ann O’Donoghue (now Trigg) is reversed and a new trial ordered, with, costs to appellant to abide the event.

O’Brien, Ingraham, Hatch and Laughlin, JJ., concurred.

* Judgment dismissing complaint as to William and James O’Donoghue affirmed, with costs, and judgment in favor of plaintiff Margaret A. O’Donoghue reversed, hew trial ordered, costs to appellant to abide event.  