
    Foley et al. v. Mutual Life Ins. Co. of New York.
    
      (Supreme Court, General Term, First Department.
    
    April 14, 1892.)
    1. Guardians in Socage—Control of Personalty.
    In New York, guardians in socage have neither common-law nor statutory right to control the personal estates of their wards.
    2. Act of Unauthorized Guardian—Ratification by Ward.
    Where a husband assigns an en do wment insurance policy to his wife and children, and the wife dies, leaving her share to the children, and naming her husband as executor, and guardian of the estate of the children, and the husband having obtained letters testamentary, but not letters of guardianship, surrenders the policy to the underwriter for its present value, receipting as executor and guardian, mere acquiescence on the part of one of the children, after becoming of age, without receiving the fruits of the act, will not constitute a ratification by such child, so as to estop him to maintain an action against the underwriter to have the surrender adjudged void.
    3. Same.
    The fact that such child instituted proceedings to compel his father to account as guardian does not constitute a ratification of the father’s acts, when the suit was dismissed on the ground that the latter was not guardian.
    4. Equitable Counterclaim.
    Since the father was legally obliged to support his children, and able to do so, the underwriter was not equitably entitled to counterclaim any expenditures by the father for the benefit of the children. Wuesthoff v. Insu/ranee Co., 14 N. E. Rep. 811,107 N. Y. 587, distinguished.
    Appeal from special term, Hew York county.
    Action by John Foley. Jr., and others, against the Mutual Life Insurance Company, to have a surrender of a life insurance policy adjudged void. Judgment for plaintiffs. Defendant appeals.
    Affirmed.
    Argued before Van Brunt, P. J., and O’Brien, J.
    
      Davies, Short & Townsend, (Julien T. Davies and Edward Lyman Short, of counsel,) for appellant. Wilcox, Adams & Green, (Herbert Green, of counsel,) for respondent.
   O’Brien, J.

This action was brought to have a surrender of a life insurance policy adjudged void, and the policy declared to be in force in favor of plaintiffs, and delivered up to them on payment of certain back premiums. The policy was an endowment policy on the life of John Foley, and was issued in 1876. It was therein provided that, in consideration of the payment of certain premiums at stated times, defendant would pay to John Foley, or his assigns, in 1891, the sum of $10,000, or if he should die before that time, to pay such sum to his executors, administrators, or assigns; that, in 1879, Foley assigned all his right, title, and interest in this policy to his. wife and children. Mrs. Foley died in 1879, and one child, Lizzie, in August, 1885, and the plaintiffs are the other children named in the assignment. By Mrs. Foley’s will she gave and bequeathed all her property to her children, including any unborn child, share and share alike, and also named her husband, John Foley, as the executor of her will, and the guardian of the persons and estate of her children. Letters testamentary were issued to the husband, but no letters of guardianship, on the will or otherwise, were issued or applied for by him. The trial court, therefore, accordingly found as a fact that no letters of guardianship were or had been issued to him under said will, or otherwise, and as a conclusion of law that he was never appointed guardian of plaintiffs, Or of any or either of them. In 1888 John Foley took the policy to the defendant, and surrendered it as executor and guardian, receiving therefor a check for the sum of $7,229, payable to him as executor and guardian, and for which he receipted as executor and guardian.' This check, after being indorsed by him as executor and guardian, was indorsed underneath in his individual name, and deposited in his individual bank account. All of the plaintiffs at this time were under the age of 21 years. John Foley, Jr., became of age May 7, 1888, and Madeline in November, 1889. All the other plaintiffs are still minors. All 'the premiums on this policy had been paid up at the time of its surrender, and before the commencement of this action an amount sufficient to pay the premiums accruing since the cancellation of the policy by defendant w.as tendered and refused.

From the judgment of the special term, holding that the surrender of the policy by John Foley was illegal and void, this appeal is taken, and to secure a reversal the appellant has urged upon our attention several grounds, all of which were ably disposed of by the court below, leaving, however, a question which strikes at the vei-y right of plaintiffs to maintain this action, and which we deem it proper briefly to consider. It is insisted that upon the death of Mrs. Foley an estate in land having become vested in the infant children, the guardianship of these infants and control of their real and personal estate, with the rights, powers, and duties of a guardian in socage, belonged to their father, John Foley, Sr. If this claim could be maintained,—that where, in the absence of any testamentary or other guardian, under the Revised Statutes, the father becomes what might be designated as the statutory guardian in socage, and as such guardian has control not only of the lands, but also of the personal estate of the infant children,—then the right of the father, John Foley, acting in good faith in surrendering the policy, could not be disturbed. In Tyler on Coverture and Infancy, (page 235,) it is said: “ There are two kinds of guardianship, one by common law, the other by statute. Guardianship at common law has fallen into comparative disuse in this country, although many of the principles which have entered into that relation are adopted in guardianship by statute.” There were four kinds of guardians at common law, but the only one we need discuss here is the guardian in socage. “ Guardianship in socage arises only when the infant has land by descent, * * * which takes place when socage lands descend to the infant while under fourteen years of age, and ceases when the infant arrives at the age of fourteen years, unless no other guardian is appointed for him.” Id. 237. Under the common law the right and duty of a guardian in socage were originally exclusively confined to real estate, but by degrees it was seemingly extended so as to embrace personal property. This extension of guardianship in socage, at common law, though prevalent in England, was not followed in this state, and in the absence of authority or decision it cannot be said that in this state such guardian ever obtained title to, or control over, personal property of an infant. It is true that Grover, J., in Torrey v. Black, 58 N. Y. 189, says: “A guardian in socage can maintain actions for injuries to the real and personal estate of the ward. ” We take it, however, that a distinction must be made between the right to preserve property, be it real or personal, including the right to maintain an action therefor, and the conferring of title, as to infants’ property, which will enable the holder thereof to legally dispose of or confer title the: eto upon another.

What was said in Wuesthoff v. Insurance Co., 107 N. Y. 587, 14 N. E. Rep. 811, in regard to the policy, is applicable here: “It expressed in terms what in the absence of express words would be the legal consequence, that an obligation for the payment of money to infants may be discharged by payment to a guardian. The qualification that the guardian must be duly authorized to receive the payment is implied. It would be contrary to the nature and object of the contract to construe it as authorizing payment of a debt due to infants to be made to a person who, although he might in a formal or even in a legal sense be a guardian, nevertheless had no authority as such to collect or receive the money or debts due to the ward. Wethinkitcannot be questioned that the contract to pay the guardian of the infant beneficiaries means a guardian legally authorized to receive and discharge the debt, and that a guardian possessing this authority, whether a general or chancery guardian, a testamentary guardian, or a guardian ad litem, is, within the hearing of the policy, a guardian to whom payment could be lawfully made. ” The question in Torrey v. Black, supra, related to the power to commit waste by the statutory guardian of an infant, in whom an estate in land becomes vested. Also, in Re Hynes, 105 N. Y. 560,12 N. E. Rep. 60, where the father of certain infants died seised of real estate, the court said: “There can be no doubt of the authority of a guardian in socage to make a contract such as this. By our Revised Statutes, under the facts in this case, the mother became a general guardian, with the rights, powers, and duties of a guardian in socage. Such a guardian had a right to the possession of the ward’s land, and to the receipt of the rents and profits thereof, and could maintain ejectments to recover possession of such lands.” In Emerson v. Spicer, 46 N. Y. 596, many of the provisions of the Revised Statutes are referred to and quoted at length. “Guardianship „in socage here is entirely regulated by statute. * * * Such guardianship shall belong, first, to the father of the infant; second, if no father, to the mother; third, to others specified.” “To every such guardian all statutory provisions that are or shall be enforced relative to guardians in socage shall be deemed to apply. The rights and authority of every guardian shall be superseded in all cases where a testamentary or other guardian shall have been appointed under the provisions of the statute.” The duties of such guardian are defined by statute, and it will be noticed that they relate to the care, custody, and protection of the ward’s real estate. To the suggestion, therefore, that the father, as the guardian in socage, succeeded to the control of the personal property of the infant, two answers may be given. The statutory guardian in socage in this state has not been regarded as possessing the same rights and duties as the common-law guardian in socage, and we have been referred to no authority or statutory provision which concedes to such guardian the. control or title to the personal property of the infant.

Again, it must be remembered that it is not the rights, powers, and duties of a guardian in socage as they existed at common law that are to determine, but such rights, powers, and duties as were conferred by statutory provision, prior to the enactment of the Revised Statutes. The latter provides that “all statutory provisions that are or shall be enforced relative to guardians in soc-age shall be deemed to apply. ” We have been referred to no statute, prior to the Revised Statutes, which conferred upon the guardian in socage any right or power over personal property. Previous to the Revised Statutes a father could not be guardian in socage of liis child, (Fonda v. Van Horne, 15 Wend. 631,) and plaintiff’s only right to be guardian in socage is created by, and his powers and duties regulated by, the Revised Statutes. While, therefore, under the Revised Statutes, a father becomes a so-called statutory guardian in socage, the right and authority of every such guardian are superseded in all cases where the testamentary or other guardian has been duly appointed. In Segelken v. Meyer, 94 N. Y. 473, it was held that “an action to recover money or personal property belonging to an infant may be brought in the name of the infant by his guardian ad litem, although he is a general guardian.” In discussing the question in that ease, though not directly involved, a guardian in socage is thus referred to: , “As a guardian in socage has to do only with the real estate of the infant, it has been claimed in some cases that the Revised Statutes empower a general guardian to bring action only in relation to such real estate and the rents and profits thereof, and as to such actions it has been held that they can be maintained by the general guardian only. ”

We think that sufficient has been said to show that the so-called statutory guardian in socage has never been invested in this stale with the title or control of the personal property of the infant, but that his powers related and were confined to matters growing out of the real estate of the infant. The surrender, therefore, of the policy by the husband cannot be justified upon the theory that as guardian in socage he had such right. It is not claimed that outside of his right as guardian in socage he bad any power to surrender the policy. Ho letters of guardianship were ever issued to him, and although he was designated in the will of Mrs. Foley, such appointment, being made by a wife m favor of a surviving husband, was invalid; and even though it could be upheld in the absence of the issuance of letters of guardianship, the husband, by section 7, c. 206, Laws 1877, had “no power or authority over the personal estate of the minors, for whom he is named as such guardian.”

We have examined the testimony for the purpose of determining whether the other position assumed by appellant is supported,—that the plaintiff, John Foley,’ Jr., is not, in any event, entitled to any relief; the claim being that after attaining his majority, on May 7,1888, he acquiesced in and adopted the surrender of the policy by John Foley, Sr., as executor and .guardian, to the defendant, with full knowledge thereof; and, secondly, by the settlement with his father, John Foley, Sr., after attaining majority, elected not to pursue his remedy against the company, and that such settlement in particular constituted a ratification of his father’s act in receiving the money. Such examination does not show that he ever ratified the surrender after he became of age. In the absence of an express ratification, it must be shown that,the infant, after becoming of age, has accepted the fruits of the unauthorized act, or in some way benefited by it. Mere acquiescence is not sufficient, (Green v. Green, 69 N. Y. 553;) and upon the evidence there is doubt upon the question as to whether or not he ever acquiesced. But whether he did or not, as stated, is entirely immaterial, because there is no evidence of any express ratification, nor was it shown that he in any way accepted the fruits of, or benefited by, the unauthorized act.

It is insisted further, however, that by proceedings in the surrogate’s court, on the basis that the apparent right of his father to act as testamentary guardian was a valid, legal right, Foley, Jr., could not thereafter take the antagonistic and inconsistent position which is involved in the maintenance of this action, namely, that his father was not testamentary guardian. We are not impressed with the force of this suggestion, that such proceeding created an estoppel by matter in pais, when it is remembered that these very proceedings to compel the father to account as guardian were dismissed upon the ground that he was not the guardian. There might have been much force in the suggestion, had it as a matter of fact appeared that he was guardian, or had the son, on the theory that he was such guardian, been permitted to proceed in the surrogate’s court, and enforce his claim against his father,—that, so far as he individually was concerned, he had elected one of two inconsistent remedies, and was bound by such election. But neither the proceedings, nor the agreement made between the father and the son, and which inured to the benefit and advantage of all'the plaintiffs in this action, presents any good reason, in law, why this action may not be maintained. Had there been, with knowledge of all the facts, such election to pursue the remedy against the father, or had the claim for moneys received been included in the settlement made with the father, then the release which was executed in favor of the father would not only have inured to the benefit of the latter, but we think, with some justice, could have been urged in discharge of any claim that might have been made against the defendant.

The only remaining question for us to consider relates to the refusal to order a reference for the purpose of determining whether or not such sums as may have been paid by the father might not be availed of by the defendant company as an equitable counterclaim. This right, itis claimed, has been recognized in Wuesthoff v. Insurance Co., supra, wherein it is said: “The defendant, on a new trial, may be able to show that the money paid to the guardian has been applied, in whole or in part, to the benefit and support of the infants, under circumstances which entitle the defendant to an equitable counterclaim.” In that case, however, the person to whom the money was paid, and who may have applied some for the benefit of the infants, was not, like the father in this case, under any obligation to support the infant. It is no doubt true, where a person under no legal obligation to support an infant pays moneys for its benefit, which may have been received without authority by such person, or where such person out of the infant’s own property, without authority, makes expenditures for the benefit of the infant, that the same may be under some circumstances available as a defense, by way of equitable counterclaim, in an action brought by or on behalf of the infant to recover such moneys. We have, however, been referred to no case where a father, who is under a legal obligation to support his children, and who, so far as the testimony shows, was amply able to respond to such obligation, obtains illegally the property of his children, and an action is brought against a person «who has unlawfully paid over the same to the father, that this entitles such-third person to equitably counterclaim any expenditures made by the father for the benefit of the children.

Upon the entire case we find no good ground for disturbing the judgment, and it should be affirmed, with costs.  