
    MULLER v. STRUPPMAN.
    
      N. Y. Supreme Court, First Department;
    
      Special Term, September, 1878.
    
      Again, November, 1878.
    Sale of Infants’ Lands.—Suspension of Power of Alienation.—Will.—Reimbursement of Expenses for Examination of Title.—Liability of Guardian Ad Litem, for Costs.
    The supreme court has no inherent, original authority to partition and sell the real estate of infants, and proceedings for that purpose are authorized alone by legislation, and the limits imposed upon them are controlling on the courts.
    The lands of infants cannot, in any form, be sold, when a sale would defeat the instrument under which the title should be acquired.
    A direction in a will, which simply has the effect of preventing a division of the estate until the youngest child of the testator attains the age of twenty-one years, or previously dies, does not produce an unlawful suspension of the power of alienation.
    If, after the sale of land under a decree of partition, the buyers cannot be compelled to complete their purchase on account of the invalidity of the partition proceedings, the purchasers should be reimbursed their expenses for examination of title, and the commissioners, appointed to partition, paid out of the money of the estate.
    Should there not be enough money in the estate available for that purpose, then the deficiency should be paid by the parties to the partition suit, in proportion to their interests.
    The guardian ad litem, of infant parties to such a suit is personally liable for his wards’ share of the deficiency.
    I. Motion by plaintiffs to compel purchasers of real estate to complete their purchase.
    This action was brought by Auguste Muller and Louis Muller, infants, by J. 0. Julius Langbein, their guardian ad litem, against Charles Struppman and others, for the purpose of obtaining a partition of certain real estate, or a sale thereof and a division of the proceeds, if partition could not be made.
    The facts, so far as they are necessary to be here stated, are as follows : The premises in question were owned by one Adam Muller, who died on February 6, 1873, leaving him surviving Matilda Muller, his widow, and four children, viz. : Mary, wife of Charles Struppman, then aged 23 years ; Bertha, aged 18 years; Auguste, then aged about 13 years; and Louis, then aged about 8 years.
    The deceased left a will, which was duly admitted to probate on February 25, 1873. The will, among other things, contained the following provisions:
    
      “ First. After all my lawful debts are paid and discharged, I give and bequeath unto my wife Matilda, in lieu of her dower, the one-half of all the rents, interest and profits of my estate, real and personal, after payment of the taxes, assessments, insurance, Croton rents and repairs necessary to be made, to have and to hold the same to her during her natural life, she to support and maintain my infant children thereout. I give and bequeath the other half of such rents, interest, profits of my estate, real and personal, after payment of such taxes and other expenses aforesaid, to my children, equally to be divided among them until the youngest child shall attain the age of twenty-one years, when said estate is to be divided equally among my said children absolutely in fee forever. Provided, however, that if at such time my said wife shall still be living, then my estate shall be divided into two parts—one part thereof shall be set apart, and the income thereof, subject as aforesaid, shall be paid to my wife during her life, and upon her death such one-half shall be divided equally among my children absolutely in fee forever. The other half, when my youngest child shall be of age, shall be divided among my children absolutely in fee forever, and who I hereby constitute my residuary devisees, any posthumous child to share equally with my children born during my life.”
    Subsequent to the death of the testator, Matilda Muller, the widow, and Mary Struppman and Bertha Young, died. Mrs. Struppman left her surviving her husband and three infant children.
    On March 22, 1877, a petition of Auguste Muller and Louis Muller, by their general guardian, J. C. Julius Langbein, praying for leave to commence this action, was presented to the court. An order was made granting such leave, and this action was accordingly commenced.
    On March 19, 1878, a decree was entered adjudging the rights and interests of the parties, and directing a sale of the premises and a division of the proceeds.
    The commissioners who were appointed to make the sale, sold the premises No. 337 East Fourth street to Isaac Heilbrun ; the premises 181 Avenue B to Babette Solomon, and 211 Avenue C to John Gribney. The purchasers respectively paid a sum equal to ten per cent, of their purchase price, as a deposit, but at the time appointed for the completion of the purchase, the purchasers refused to accept the title, and filed some nineteen specific objections to the title offered.
    The plaintiff’s attorney moved, at special term, for an order requiring the purchasers severally to complete their purchase. The same objections as those filed with the commissioners were urged by the purchasers, in opposition to the motion, but the only objection passed upon was that the sale was unauthorized, and in violation of the statute.
    
      George F. and J. O. Julius Langbein, for plaintiffs.
    
      Henry M. Goldfogle, for purchaser Heilbrun, as to the question of jurisdiction, claimed :
    I. It was against the provisions of the last will and testament to partition and divide the real estate in question, or to sell the same and divide the proceeds among the children and grandchildren of the testator (Young v. Langbein, 7 Hun, 151). The restriction created by the will was valid (Hunter v. Hunter, 17 Barb. 25, 92; Tucker v. Bishop, 16 N. Y. 402; Du Bois v. Ray, 35 Id. 162; Eels v. Lynch, 8 Bosw. 465; Lang v. Ropke, 5 Sandf. 364; McGowan v. McGowan, 2 Duer, 57; Burke v. Valentine, 52 Barb. 412 ; S. C., 5 Abb. Pr. N. S. 164, and cases there cited. Vide Levy v. Hart, 54 Barb. 248). Independent of any statutory provision, the court had no power or authority to entertain this action, or render the alleged judgment herein, and so defeat the intention, as well as the imperative will of the testator (1 R. S. 748, § 2 ; McGowan v. McGowan, 2 Duer, 57; Butler v. Butler, 3 Barb. Ch. 310 ; Bates v. Hillman, 43 Barb. 645 ; Du Bois v. Ray, 35 N. Y. 162; Morton v. Barrett, 22 Maine, 257; Land v. Otley, 4 Rand. 213 ; Tappan v. Deblois, 45 Maine, 122 ; Reno v. Davis, 4 Hea. & M. 283 ; Jackson v. Merrill, 6 Johns. 190 ; Parks v. Parks, 9 Paige, 117, and cases cited in note to 2 ed. ; Rathbone v. Dyckman, 3 Id. 9 ; Hoes v. Van Hoesen, 1 N. Y. 122; Cowenhoven v. Shuler, 2 Paige, 122; Pond v. Berg, 10 Id. 140).
    II. The sale of the premises was illegal and in violation of the statute, and the commissioner’s deed could pass no title to a purchaser (2 Edm. R. S. 203, § 176; Rogers v. Dill, 6 Hill, 415). Independently of an authority derived from the législature, the court has no right or power to entertain the question or direct a sale (Tyler on Inf. 296; Garmstone v. Gaunt, 1 Collyer, 577; Rogers v. Dill, 6 Hill, 415, 417; Onderdonk v. Mott, 34 Barb. 106 ; Baker v. Lorillard, 4 N. Y. 266 ; Russell v. Russell, 1 Molloy, 525; Taylor v. Philips, 2 Ves. 23; Horton v. McCoy, 47 N. Y. 21, 26). The statute on which the purchasers rely has application not only to proceedings by petition for the sale of infants’ estates, but also to actions for partition. It was the intention of the legislature to prevent “ in any manner ” the dispersion of an estate, against the wishes, desires, and imperative directions of a testator, and neither the statute regulating proceedings for partition, nor the act of 1852 (c. 277), under which the action was brought, contain any words of repeal or modification, and there is nothing in either statute repugnant to that rule (Horton v. McCoy, 47 N. Y, 21, 26).
    
      John 8. McNulty, for purchaser Gribney.
   Daniels, J.

This court, as a court of equity, has no inherent original authority to order the sale of the real estate of infants. It proceeds, on the other hand, by virtue alone of statutory power, and consequently, when a departure is made from that authority, the court proceeds without jurisdiction, and the acts performed are necessarily void. That principle has been applied and acted upon when adjudications dependent for their validity upon the observance of other statutory regulations have been brought in question (Bullymore v. Cooper, 46 N. Y. 236). Proceedings of this general nature have often been drawn in question, and practically the same principle has been applied to determine their effect. In order to be maintained, they are uniformly required to observe what the legislature, by the statute governing them, may have prescribed.

Proceedings, by petition or action, for the sale of the real estate of infants, are of this nature. They have been authorized alone by legislation, and the limits imposed upon them are therefore controlling on the courts. Where they are transcended to that extent the proceeding is without authority, and for that reason invalid. One of these restraints has been imposed upon the sale of infants’ lands by a general provision of the statutes, declaring that “No real estate, or term for years, shall be sold, leased, or disposed of in any manner, against the provisions of any last will, or of any conveyance by which such estate or term was devised or granted to such infant” (2 Edm. R. S. 203, § 176). This is a general prohibition, including all actions and proceedings by which a sale may be in any manner made, in contravention of which no infants’ land can be legally sold. The same reason will apply for preventing the sale in one form as in another. The object of the provision was to prevent the lands of infants from being in any form sold, when a sale would defeat the instrument under which the title should be acquired. And all proceedings terminating in such a result must consequently be void, otherwise the courts could practically repeal the statute. That was the conclusion which was sustained in the case of Rogers v. Dill (6 Hill, 415), and its authority in this respect does not seem to have since been questioned. No such restraint upon the authority of the courts was in the case of Blakely v. Calder (15 N. Y. 617), or in that of De Forest v. Farley (62 Id. 628). They were, at most, simply erroneous, and conclusive as to the rights of the parties as long as they remained unreversed. The defect is much more serious than that, when this statute applies to the case, for it involves the exercise of authority which the legislature have declared that no court shall possess. And if that can be disregarded, then the means may be supplied by the action of the courts through which the intention of the legislature and of the testators will be at the same time frustrated and defeated. That is a result which courts, created to administer the laws, should be expected not to sanction by their decisions.

The purchaser of the property sold under the judgment in partition in this case has declined to accept the title tendered, because the sale was made in violation of this provision of the statute. The will under which the point arises was before the general term of this court for consideration in the case of Young v. Langbein (14 N. Y. Sup. Ct. 151), and so far as its terms become important in the decision of this application, they will be found to be there reported (Id. 154, 155). The testator, by his will, made no direct devise of his real estate, but he gave to his widow one-half of its net rents, and the other half of such rents he gave to his children, “until the youngest child shall attain the age of twenty-one years, when said estate is to be divided equally among my said children, absolutely in fee forever.” It was, however, further declared that if the testator’s widow should then be living, that she should still continue to receive her one-half of the income, and that the division of that half should be postponed until the period of her decease. But the division of the other half was still to be deferred as he had directed it, until his youngest child should become twenty-one years of age. As to this one-half of his real estate, his intent very evidently was that no division of it should be made while his youngest child remained a minor.

The widow is now deceased, and for that reason the contingency made to depend upon her life is not one important to be further considered. But the other restraint as to the other half of the testator’s real estate still remains as the testator declared and created it, and from that, as no sale of the property affected by this judgment was authorized by the act of the executors, it is evident that he designed his children should only have the rents during the minority of his youngest child, and that the property itself should not be divided among them until the youngest child became twenty-one years of age. This was the view taken of this will when the case of Young v. Langbein (supra) was decided, and the restraint was then considered to be operative. And the same, conclusion was also expressed concerning a similar devise in the case of Rogers v. Dill (supra). It has been suggested that a different opinion had been expressed in other actions and proceedings ; but no adjudication of that nature has been shown which would justify the least deviation from the principle of those which have been already mentioned. The sale was only one mode for making a division of this half of the testator’s estate, when the legislature had declared that it should not be done as long as it contravened the directions he had given.

II. Subsequent to the delivery of the above opinion, counsel for the purchasers applied to Mr. Justice Daniels, for an allowance for the searching and examination of the titles to the premises sold. During the pendency of the action, a receiver of the estate of Adam Muller, deceased, had been appointed, and it was asked by the purchaser’s counsel that the allowances be paid out of the moneys in the hands of the receiver, and if any deficiency should arise, that the guardian ad litem for the infant plaintiff be-required to pay the same personally.

It has been objected that this restraint produced an unlawful suspension of the power of alienation, and for that reason it was inoperative. But that was not the case, for such a direction as this simply has the effect of preventing a division of the estate until the child attains the age of twenty-one years, or previously departs this life. In either event the estate is made dependent on the continuance of the minority before the property becomes divisible (Lang v. Ropke, 5 Sandf. 363; Burke v. Valentine, 52 Barb. 412).

The sale made as to this one-half of the estate was unauthorized, and for that reason, without considering the other objections, the motion made to compel the purchasers to accept the title must be denied, and the commissioners must refund the moneys received by them under the terms of the sale which they made.

An order was made directing the commissioners in partition to refund to the purchasers their respective deposits, with interest; that the receiver pay to the purchasers the auctioneer’s fees paid by them on the sale, and also the sum of $206.70 to the purchaser Heilbrun; the sum of $188.50, to the purchaser Gribney; the sum of $175.00 to the purchaser Solomon, these sums being allowed for the searching and examination of the titles. The fees and expenses of the commissioners were likewise directed to be paid. The order contained a provision that if sufficient moneys were not in the hands of the receiver to pay the sums above mentioned, then that one-half of the deficiency be paid by the plaintiff’s guardian ad litem, personally, and the other half by the other parties to the action, in proportion to their interest in the premises affected by the action.

The case now came before the court for the settlement of the order.

Henry M. Goldfogle, for the purchasers, in support of the application, insisted :

I. The purchasers should be reimbursed for their expenses and costs in having the title examined, and that this is the general rule in all judicial sales on discharging a purchaser (1 Barb. Ch. 535 ; Pleasants v. Roberts, 2 Molloy, 507; Morris v. Mowatt, 2 Paige, 593; Spring v. Sandford, 7 Id. 556 ; Clark v. Clark, 14 Abb. Pr. 300 ; Matter of Cavanagh, Id. 261, note; Rogers v. McLean, 31 Barb. 305).

II. If there be not sufficient moáeys in the receiver’s hands, the guardian ad litem for the infant plaintiffs should be personally charged with the deficiency. This action having been commenced under the old Code, section 316, providing, “when costs are adjudged against an infant plaintiff, the guardian by whom he appeared shall be responsible therefor, and payment thereof may be enforced by attachment,” applies to and governs this case. The Code of Civil Procedure has made no change in this respect (Code Civil Pro. § 469).

C. P. Langbein, in opposition, insisted:

That the action was brought in good faith, and the estate should not be subjected to pay the expenses of the purchasers. That these expenses were not costs for which the guardian would be liable, and that the allowances asked for were excessive.

Daniels, J.

In disposing of the points made and objections presented on the settlement of the order, it will be proper to say that the amounts allowed to the purchasers for their expenses have been so completely sustained by the affidavits produced in their behalf, that no good reason can be perceived or assigned for reducing them; and these, as well as the expenses of the commissioners, have been apportioned between the parties according to their interests as they have been ascertained by the judgment, because that method of distribution has been prescribed by the statute, for the costs of proceedings in partition. All are required to contribute according to their interests in the property (3 R. S. 5 ed. 615, § 76 ; 616, § 86). And besides that, it is the only equitable method of dividing burdens of this description. All the parties seem to have concurred in the proceedings, and all have in like manner failed, and they should all participate in proportion to their interests in defraying the expenses resulting from such failure.

The Code of Procedure, under which the proceed-. ings were commenced, provides that the guardian of infant plaintiffs shall be liable for the costs adjudged against them (Code, § 316). The allowances are for the costs and disbursements, or, more properly, the expenses of the ineffectual proceeding, and within this provision should be paid by the guardian so far as they are recoverable against his wards. The extent of that liability is one-half the amounts, as they were so far interested in the property.

It is a matter of regret that these burdens should be required to be imposed upon the parties. But no other course seemed to be open to adoption, and, while the loss is a serious one, it will in the end add security to the tenure of infants’ property, which there seems to be too great a desire should be sold under the sanction of courts of justice; and when these sales so often jeopardize the estate of infants, and result in the loss of their proceeds before they themselves can exercise that degree of intelligence and judgment which are necessary for the protection of their interests, a strict adherence to the statutory authority over these subjects cannot fail to greatly benefit this class of persons, whom the law justly considers incapable of protecting themselves, and this to some extent may be considered an alleviation of the hardship resulting from the disposition which it has been found necessary to make of this case.

There was no appeal.  