
    Margaret Ann O’Donoghue, et al., App’lts, v. L. Dwight Boies, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December, 1895.)
    
    1. Will—Construction.
    Where the testator devised his real estate to his executors, in trust to sell the same, to divide the proceeds into eight equal shares, to invest such shares severally for the benefit of his eight children, and to pay over to-each child at his majority an equal share, and by a codicil, he revoked the power of sale so given, but provided that the land should be held under the same trust, and further provided that the executors might, whenever a child reached lawful age, make partition of the land and allot to each child his share, the direction and evident purpose of the testator is that none of the shares of his children in such real estate should be sold during his or her minority.
    B. Partition—Sale of infants’ land.
    A sale of an infants’ real estate by order of the court, contrary to the provisions of a devise, is utterly void, and no title passes thereunder to the purchaser.
    8. Same.
    The act of trustees, the one in instituting the partition action, and the other as guardivn ad litem of the infants, in allowing judgment of partition and sale to be take therein by default, are in direct violation of section 65, 4 Rev. St. (8th ed.) 2439.
    4. Same—Guardian.
    All purchases made by a guardian, in such an action, of infants’ lands sold therein, are unless for their benefit; and. where the conveyance is made to the guardian in his own name and in form for himself individual^, and there is nothing in the record nor in the conveyance to indicate that he holds the property in other person’s interest than his own, the presumption is that the transaction is such as upon its face it appears to be.
    5. Same—Burden.
    Where an act is prohibited with an exception, the burden rests on the party claiming the exception to bring himself within it.
    6. Same.
    The fact that an order entered in the partition action confirming said sale to the guardian, does not strengthen it.
    7. Same—Laches.
    A delay on the part of the wards in bringing proceedings to recover possession of the premises, does not affect their rights.
    8. Same—Bona fide purchaser.
    Where the record, through which a purchaser makes his title, discloses all the facts, he can claim nothing as a bona fide purchaser.
    Appeal from a judgment in favor of defendant.
    Frederick A. Card and Ladislas Karge, for app’lts; B. A. Benedict, for resp’t.
   PARKER, J.

The lands in controversy in this action are a part of those devised by the will of Michael O’Donoghue, and so far as any question presented by this case is concerned, such will may be said to have provided as follows: By the eighth clause thereof, the testator.devised all'of his real estate to his executors, in trust, to sell the same, to divide the proceeds into eight equal shares, to invest such shares, and to apply the interest and income

therefrom severally to the use of his eight children, one share to each, during his or her minority, and upon each of them attaining lawful age, to pay over to such child his or her equal share. By a codicil, however, he subsequently revoked the power of sale so given, except as to three parcels in the city of New York, and directed that only such excepted parcels should be sold. He further provides that the lauds not sold shall be held by his executors under the same trust which was imposed by the eighth clause upon the proceeds which were to be derived from the sale therein directed. He also expressly declares that he does not design to alter the beneficial interests in such lands, which were given by such eighth clause. In the ninth clause, it is provided that the executors shall have power, whenever any of his children shall attain lawful age to make partition of his real estate, and allot to such child his equal share thereof. It is manifest from those provisions that the plain intent of the testator was to preserve to each of his children an equal share, viz. one-eighth, of his real estate, until.such child should attain the age of 21 years. During the period of his minority his share of the land was to remain unsold, and the rents and income therefrom were to be collected by the executors, as trustees, and applied by them to the infant’s use. Although power was given them to divide and allot each child, as he or she became of age, an equal share of such lands, a sale of such share during infancy is directly prohibited.

It is claimed that the ninth clause of the will under consideration gives to each child, upon arriving at majority, the right to have his share of the estate, and that, therefore, in the event that equal partition could not be made by the executors without a sale, a sale was intended and authorized by the testator. In view of the fact that each child, on his arriving at majority, became vested with his undivided share of the lands so devised in the event that the executors did not, or could not, fairly allot it to him in severalty, and that each thus received the full benefit of all that was given by the will, and in view of the further fact that the testator expressly revoked by codicil the power of sale previously given, we cannot adopt the construction contended for. We are not required or permitted to seek the testator’s intent by inference or implication in the face of a purpose so plainly expressed in the codicil before us. The direction and evident purpose of the testator was that none of the shares of his children in such real estate should be sold during his or her minority. Some ten years after the probate of such will, one of the executors, a son of the testator, commenced an action for the partition or sale of all the lands so devised, and for a division of the proceeds among the beneficiaries named in said will. The plaintiff’s in the present action, who were then infants, were made parties defendant in such action, and their mother, Ann O’Donoghue, the other executor, was appointed their guardian ad litem. No defense was made, and the action resulted in a judgment directing the sale of all the testator’s real estate. The lands in question were sold under such judgment by a referee appointed therein, and were bid off by Ann O’Donoghue, the said guardian of such infants$ and a conveyance thereof was executed to her by the referee upon May 25, 1870. Subsequently, in April, 1876, she executed a mortgage upon such premises to secure a loan of $1,500 made to her. Such mortgage was foreclosed, the premises were sold thereunder, and in August, 1880, this defendant acquired the title which was so mortgaged and sold. The plaintiff's bring this action of ejectment to recover an undivided three-sevenths of the premises. It appears that one of the children of the testator died without issue, and, under the will, his share became- vested in his surviving seven brothers and sisters.

At the time the premises were sold in the partition action, the Revised Statutes that:

“No real estate (of an infant) 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.”

The plaintiff’s claim that, by reason of such statute, the court was without jurisdiction to render a judgment directing the sale of the property in question; that hence all proceedings under such judgment were utterly void; and that their interests in the premises were not affected by the referee’s conveyance to Ann O’Donoghue. Conceding, as we must- that the sale under that judgment was in-plain opposition to the provisions of Michael O’Douoghue’s last will, this claim of the plaintiff’s seems to be sustained by the decisions in this state. If the court was without jurisdiction to order such sale, such order was a nullity, and could have no effect whatever upon the plaintiffs’ title. Craig v. Town of Andes, 93 N. Y. 405, 410; In re Walker, 136 N. Y. 20, 29; 48 St. Rep. 893. That its proceedings were not merely irregular, but were utterly without jurisdiction, is held in Rogers. v. Hill, 415. It was there held that a sale of an infant’s real estate, by order of the court of chancery, contrary to the provisions of a devise, was utterly void, and'that no title passed thereunder to the purchaser. That was a case .where the proceedings to sell were under the statute relative to the sale of infants’ real estate, when necessary for their support and maintenance; but that the rule is equally applicable to a sale in an action for partition is held in Muller v. Struppman, 6 Abb. N. C. 343. The reason is the same in each case. In neither proceeding has the court any authority to sell, except bjr force of the statute (Thompson v. Hardman, 6 Johns. Ch. 436; 17 Am. & Eng. Enc. Law, 785; 3 Pom. Eq. Jur. § 1390); and in those instances where the statute forbids it the authority is utterly wanting.

The plaintiffs further claim that there was a trust expressed in the will of Michael O’Donoghue in their favor during their minority, and that the statute declares that every sale, conveyance, or other act of the trustee in contravention of such a trust shall be absolutely void (4 Rev. St. [8th Ed.] p. 2439, § 65) ; hence, that the acts of their trustees, the one in instituting the partition action, and the other as guardian ad litem of. the infants, in allowing judgment of partition and sale to be taken therein by default, were in direct violation of this statute; and that the sale so procured was therefore utterly void. The following eases seem to sustain that position, and to hold that the court has no power to render-valid, by an orderor judgment, an act of the trustees which the statute declares to be void. Douglas v. Cruger, 80 N. Y. 15, 18; Cruger v. Jones, 18 Barb. 467, 469; Uhl v. Loughran, 22 St. Rep. 459; Cuthbert v. Chauvet, 136 N. Y. 326; 49 St. Rep. 671. If the court may not approve and make valid such an act, it would seem to be without authority to order it.

At the time of the sale in the partition action it was provided by statute as follows:

“Nor shall any guardian of any infant party in such (partition) suit, purchase, or be interested in the purchase of, any lands, being tíre subject of such suit, except for the benefit or in behalf of such infant; and all sales contrary to the provisions of this section shall be void.” 2 Rev. St. pt. 3 p. 326, c. 5, tit. 3 § 58.

On the trial of this action, although it appeared from the record that Ann O’Donoghue, the guardian ad litem of these infants in the partition action purchased the premises in her own name, entered into possession of them as the owner, borrowed the sum of $1,500 about six years thereafter, and executed a mortgage upon them to. secure its payment, and subsequently allowed such mortgage to be foreclosed and the premises to be sold, yet it was held that such sale to her was not void, because the plaintiffs had failed to show that she did not purchase them for their benefit. In this ruling, we think, there was error. All purchases made by a guardian, in such an action, of infants’ lands being sold therein, are void unless made for their benefit; and where the conveyance is made to the guardian in her own name, and in form for herself individually, and there is nothing in the record nor in the conveyance to indicate that she holds the property in any other person’s interest than her own, the presumption would seem to be that the transaction is such as upon its face it appears to be. At least, if she desires to hold such premises from her wards, the burden is upon her to show that the purchase was not such an one as the statute condemns. It is a general rule of evidence that, where an act is prohibited with an exception, the burden rests on the party claiming the exception to bring himself within it. Fleming v. People, 27 N. Y. 329, 334; People v. Weldon, 111 N. Y. 569; 20 St. Rep. 112; Knapp v. O’Neill, 46 Hun, 317, 319. The fact that an order was entered in the partition action confirming such sale did not strengthen it, Gallatian v. Cunningham, 8 Cow. 375, 375; Terwilliger v. Brown, 44 N. Y. 237, 243; and, inasmuch as the guardian ad 1 item’s purchase was made void by statute, delay on the part of these plaintiffs in bringing proceedings to recover possession of the premises does not affect their rights. The sale is made absolutely void by the statute, and therefore the title remained wholly in the infants, even as against subsequent bona fide purchasers for value. See Forbes v. Halsey, 26 N. Y. 53. Moreover, the defendant can claim nothing as a bona fide purchaser, as the record, through which his title is made, discloses all the facts. The title to the premises in question vested in these plaintiffs upon their arriving at the age of twenty-one years, Watkins v. Reynolds, 123 N. Y. 211, 217; 33 St. Rep. 173; and the case does not show that it has ever been divested. In that respect the decision of the trial court was erroneous, and the judgment should be reversed.

Judgment reversed, and a new trial granted, with costs to abide the event.

HARDIN, P. J., concurs: MBRWIN, J., not voting.  