
    John Foley, Jr, et al., Resp’ts, v. The Mutual Life Insurance Co. of New York, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed April 14, 1892.)
    
    1. Guardians—Personal property.
    A guardian in socage has no title to or control over the personal property of the ward.
    3. Insurance (life)—Surrender—When children not affected by.
    One F. assigned an endowment policy on his life to his wife and children. The wife died, leaving children, and a will by which she, gave her property to the children and made her husband executor and guardian of the children. He received letters testamentary, but not of guardianship. He thereafter surrendered the policy and received its value as executor and guardian, but retained the same. Held, that such surrender was void.
    8. Same—Ratification.
    A settlement by one of the children, after attaining majority, with the father, which did not include such payment, or mere acquiescence in the surrender without receiving any of the fruits thereof, is not such a ratification as to estop him from maintaining an action to have such surrender adjudged void.
    4. Same.
    Nor will a proceeding brought by him against the father for an accounting as guardian constitute such an estoppel, where it appears that such proceeding was dismissed on the ground that the father was not the guardian. "
    5. Same—Counterclaim.
    In such an action the company cannot counterclaim expenditures made by the father for the benefit of the children.
    
      Appeal from a final judgment entered in favor of the plaintiffs, on a decision after a trial at special term.
    
      Julien T. Davies and JSdward Lyman Short, for app’lt; Herbert Green, for resp’ts.
   O'Biiiem, 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, that 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. 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 legally 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 endorsed by him as executor and guardian was endorsed underneath in his individual name, and deposited in his individual bank account. All of the plaintiffs at this time were under the age of twenty-one 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 was 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 very 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 guardian ship 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, p. 235, it is said: “ There are two kinds of guadianship, 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 guardián is appointed for him.” Tyler 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 lawr, 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 Torry 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 he 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 thereto upon another.

What was said in Wuesthoff v. Germania Life Insurance Company, 107 N. Y, 587; 12 St. Rep., 825, 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, he a guardian, nevertheless had no authority as such to collect or receive the money or debts due to the ward. We think it cannot 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 meaning of the policy, a guardian to whom payment could be lawfully made.”

The question in Torry 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 the Matter of Hynes, 105 N. Y., 560; 8 St. Rep., 190, where the father of certain infants died seized 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 lands, and to 'the receipt of the rents and profits thereof, and could maintain ejectment 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 is to determine, but such rights, powers and duties as were conferred by statutory provision prior to the enactment of the Revised Statutes. The latter provide that “ all statutory provisions that are or shall be enforced relative to guardians in socage 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 a guardian in socage of his 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 has a general guardian.”

In discussing the question in that casej 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 state 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 had any power to surrender the policy. Mo 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 in 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 § 7, chap. 206 of the Laws of 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 even 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 bene fited 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, that 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 of the proceedings, nor the agreement made between the father and son, and which entrred to the benefit and advantage of all the plaintiffs in this action, present any good reason in law why this action may not be maintained. Had there been, with knowledge of all the facts, an 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 enured 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, it is claimed, has been recognized in Wuesthoff v. Germania Life Insurance Company, 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 that 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 expenditure for the benefit of the infants, that the same may be under some circumstances available as a defense by way of equitable counterclaim in an action brought by or on behaf 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, that in an action 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.

Yan Brunt, P. J., concurs.  