
    MONARQUE v. MONARQUE.
    
      N. Y. Court of Appeals;
    
    
      March, 1880.
    [Reversing- Monarque v. Monarque, 19 Bun, 332, and overruling Monarque v. Requa, 53 Bow. Pr. 438.]
    Suspension op Power of Alienation.—Action to Construe Will.—Infant Parties.—Partition.
    Testator’s will, after giving his wife the use of all his estate for her life, bequeathed the income from his estate to his daughters, naming four, “to be divided between them, share and share alike, during their and each of their respective natural life, and remainder to their respective children, and to their respective heirs and assigns forever;
    
      - and further directed that if either of the daughters should die without lawful issue, her share should be divided between the survivor or survivors of them, share and share alike, and to their children respectively, as before expressed.
    
      Held, that there was no illegal suspension of the power of alienation. Such a will gives successive life estates, to the widow, and then to the daughters, remainder in fee to their children.
    A devise to several children in one clause, is deemed a devise to each in severalty of a proportionate share.
    There being no trust or other element justifying an action for construction of such a will, a judgment in such an action cannot bind the contingent interests of unborn tenants in remainder; and hence, if possibility of issue is not shown to be extinct, a purchaser is not bound to accept the title on the strength of such a judgment.
    A judgment in partition cannot bind the contingent interests of persons not in being, unless it provides for and protects such interests by substituting and preserving the proper part of the fund.
    
    Appeal from an order.
    Mary Monarque brought this action in the supreme court, against Eliza Monarque and others, for partition. The lands were left by the father of the parties, who left a will devising them to his wife for life, with remainders to his daughters and their issue.
    The provisions of the will were as follows:
    
      “First. After my just debts are paid and discharged, I give and bequeath unto my beloved wife, Eliza Monarque, the use of all my real and personal estate during her natural life.
    “ Second. I give and bequeath the income arising from my estate to my daughters Ellen Bequa, Luisa Dixon, Eliza and Mary, to be divided between them, share and share alike, during their and each of their respective natural life, and remainder to their respective children, and to their respective heirs and assigns forever.
    
      “ Third, It is my will, and I do hereby so order and direct, that if either or any of my daughters shall die without lawful issue, that the share of said deceased daughter or daughters shall be divided between the survivor or survivors of them, share and share alike, and to their children respectively, as before expressed.
    
      “ Fourth. It is my will, and I do hereby order and direct my executrix, hereinafter named, to pay off all outstanding debts against my estate, out of bills receivable and my personal estate, and that she apply the rents and profits of my said real estate to the payment of interest; taxes, assessments and repairs, and to her own support; and if it should become necessary to raise money in order to pay off and satisfy present incumbrances on my said real estate, it is my will and I do hereby order and direct her to raise the same by mortgage upon said real estate for that express purpose.”
    One of the daughters brought an action for the judicial construction of the will, claiming it was void for illegally suspending the power of alienation.'
    The complaint in her action alleged her father’s death, seized of the lands; and made defendants, his widow, and those daughters who were living at the time of the action, and the issue of all the daughter* who were in existence at the time of the action, as well as the husbands of the daughters. But there was no reference in the complaint to issue possibly yet to be born.
    
      The supreme court, at special term, held that the omission to separate the estate into shares made the gift to the daughters require an illegal suspension ; and adjudged the bequests void, except that to the widow, and that subject to that life estate the lands descended to the testator’s heirs (Reported as Monarque v. Requa, 53 How. Pr. 438).
    The plaintiff in that action subsequently received from the widow a conveyance of an undivided third of her life estate, and then brought the present action for a partition. Her complaint alleged the seizin and death of the testator, and that by the will as construed in the former action the widow had a life estate, and the daughters the fee in remainder. There was no allegation as to the grandchildren. A judgment directing sale for purposes of partition was rendered ; and the premises were sold, and a purchaser refused to complete his purchase, whereupon an order was made at special term requiring him to complete; and he appealed.
    
      The supreme court, at general term, held that the court had jurisdiction of the former action; that as no objection was there taken, the grandchildren who were parties were bound, and therefore were not necessary, parties to the partition. They accordingly affirmed the order (Reported in 19 Hun, 332).
    
      George Thompson, for the purchaser, appellant.
    The supreme court, sitting as a court of chancery, had no power to entertain jurisdiction or promulgate a valid decree. That court is limited to an exercise of the combined powers of the late court of chancery, and of the former supreme court. What could not be done in former times by either tribunal, cannot be done now by the present consolidated court. Neither supreme court, nor chancery, ever had general jurisdiction of the subject of ’wills. The power to try an ejectment suit, in which it might be necessary to determine the validity of a devise, conferred no such jurisdiction. Nor does the chancery jurisdiction over trusts. There are special reasons for not compelling heirs-at-law to apply to the court for its directions as to the will. The heir is not the custodian of the funds, nor the acknowledged representative of the estate. His •interest is almost always hostile .to the other claimants’. The heirs are frequently numerous and rapacious. A multiplicity of suits is not favored. The heir claims exemption from costs in equity. Lastly, the result of this case shows that infants might be robbed of their patrimony by such suits.
    II. Colton v. Fox (67 N. Y. 348), instead of establishing the invalidity of, is the best authority in support of, the will. In that case, testator placed the title of this portion of his property in his executors, and directed that it should remain there until the death of four persons, with a limitation over to- such of their children as should be living. An entirely different case from -this. Here the grandchildren who have an interest at the death of their parents must be made parties. The failure of jurisdiction renders the judgment void (See King v. Poole, 26 Barb. 244; also 1 Id. 286; 15 Id. 37; Lanning v. Carpenter, 23 Id. 402; Schoonmaker v. Clearwater, 41 Id. 200; Chambers v. Clearwater, 38 N. Y. 310; Edwards v. Russell, 21 Wend. 63; Root v. Morgan, 1 Hill, 654; 1 Wait Pr. 45; cases cited in Wait’s Code, 24, 25, 26; Dudley v. Mayhew, 3 N. Y. 9; Beach v. Nixon, 9 Id. 36; 2 Wait's Law & Pr. 15; Avards v. Rhodes, 8 Exch. 312; Lawrence v. Wilcock, 11 Ad. & E. 941; Vansittart v. Taylor, 3 E. & B. 910, 912; Adams Equity, 175, 248, 249; 248; 7 Wait Actions & Def. 192; citing Chapman v. Morgan, 2 Green [Iowa], 374; Jeffries v. Harbin, 20 Ala. 387; Ramey v. McRae, 14 Ga. 587; Lovejoy v. Albee, 33 Me. 414; Kenney v. Greer, 13 Ill. 432; 21 Barb. 9; 26 N. H. 232; 22 Barb. 271; Bagley v. Briggs, 56 N. Y. 407; 6 Lans. 356; Chipman v. Montgomery, 4 Hun, 739; S. C., affirmed, 63 N. Y. 221; 11 Hun, 238; Stinde v. Ridgeway, 55 How. Pr. 
      
      301; Bowers v. Smith, 10 Paige, 194; Chipman v. Montgomery, 63 N. Y. 221, 222).
    III. The rejected clauses of the will were valid.
    IV. The pleadings in the construction suit fail to show appropriate jurisdiction. The decree is therefore void.
    V. The rights of the infants were not cut off.
    VI. There is no statutory authority for the construction suit.
    VII. The force of Monarque v. Requa (53 How. Pr. 438), and DuBussiere v. Holliday (4 Abb. N. C. 111), is entirely counteracted by the subsequent contradictory decision of the same justice in Stinde v. Ridgway (55 How. Pr. 301), decided after the publication of Chipman v. Montgomery (63 N. Y. 221).
    VIII. The negligence of the guardian ad litem would entitle the minors to a bill of review. An examination of the will will show that at least five points ought to have been raised. 1. As to the effect of giving several life estates, without deferring the enjoyment of the one to the other. 2. The objection should have been raised to the jurisdiction of the court, as it was a proceeding hostile to the infants, and calculated for the destruction of their interests. . 3. That it included personal property, which had long since been settled by the proof of the will. 4. That the plaintiff had no right' to bring this suit. 5. That provision should be made for the extinguishment of the power of mortgaging the estate for the purpose of paying incumbrances, taxes, &c.
    
      J. W. Hawes, for the respondent.
    I. The judgment in Monarque v. Requa is res adjudicata, and conclusive on the grandchildren, and cannot be questioned collaterally. 1. Important cases on this point are Blakely v. Calder, 15 N. Y. 617, and Howell v. Mills, 56 Id. 226. See also, De Forest v. Farley, 62 N. 
      
      Y. 628; Schaettler v. Gardiner, 47 Id. . 404; Ray v. Rowley, 1 Hun, 614; Hunt v. Hunt, 72 N. Y. 217. The fact, that there are infant parties makes no difference. There were iniants in Blakely v. Calder, and Howell v. Mills; and Bosworth v. Vandewalker, 53 N. Y. 597, lays down the principle, that the general rules as to jurisdiction apply to infant defendants as well as to adults. 2. The court had jurisdiction of the person of all the parties in Monarque v. Requa. The adults all appeared by attorney, and the infants by a duly appointed guardian ad litem. 3. The court also had jurisdiction of the subject-matter of Monarque v. Requa. This the purchasers cleny, and on this denial base their refusal to take title. It might be a sufficient answer to say, that the tribunal was the supreme court. In England it has been a maxim, at least since Magna Charta, that every wrong has its remedy, and in all countries that have inherited the common law, there are tribunals, one or more, whose jurisdiction includes the whole field of human rights arid wrongs. In this State such a tribunal is the supreme court, having general jurisdiction in law and equity, and the affairs •with which it has power to deal (in other terms, the' subject-matter of which it has jurisdiction) are as extensive as rights that need to be enforced, or wrongs that wait to be redressed. A person, therefore, seeking to impeach the jurisdiction of the supreme court, must produce some express constitutional of statutory provision that takes away the power to act in the given case. No such provision is shown here (Ray v. Rowley, supra; Bosworth v. Vandewalker, supra; Hart n. Seixas, 21 Wend. 40; Wheeler v. Raymond, 8 Cow. 311; Kundolf v. Thalheimer, 17 Barb. 506). The cases on which the purchasers rely, so far as they have any bearing, tend to show that a court of equity will not entertain a suit similar to that of Monarque v.. 
      Requa, when there is a perfect remedy at law, and an objection in that behalf is made in season; they do not tend to show that there is any want of power in such a court to entertain and decide such a suit, if no objection is made, but the reverse. The position of the purchasers rests on a twofold error, a misconception of the use and meaning of the word “jurisdiction,” and of the term “ subject-matter. The courts of equity sometimes carelessly say that they haven’t jurisdiction in a given case, because there is an adequate remedy at law. By this they do not mean that they have not power to decide the case if they choose, but that being constituted to supply defects in the law, it is not their proper business to try cases that might be tried at law, and they will not exercise the power which all the while they claim to have, when an objection to that effect is seasonably raised. Not that the court has not power, but that the plaintiff does not place himself properly before the court to evoke that power. This is evident from the-language used in most of the cases, and in all the more carefully written opinions. The phrases usually are, “do not take jurisdiction,” “will not entertain jurisdiction,” &c. When, however, in a different class of cases, it is held that the judgment of a court without jurisdiction is void, the word “jurisdiction” has a very different meaning, equivalent to “power to act.” Thus, a surrogate’s court has not jurisdiction of an action for slander, that is, is absolutely without power to entertain and try such an action ; a justice of the peace has not jurisdiction to try the title to real estate, &c. It is only in this latter class of cases that what purports to be a judgment is void, and may be impeached collaterally. It is difficult to conceive of a case where a judgment of the supreme court would be thus void. The distinction between the two classes of cases, and the two uses of the word “jurisdiction ” is marked, and easily understood. So, as to “subject-matter,” when it is said that the judgment of a court without jurisdiction of the subject-matter is void, the term does not refer to the particular case, nor to the special facts surrounding it, but to the general class of cases. For instance, a court which by law is given cognizance of or power to try ejectment suits, has jurisdiction of the subject-matter of every ejectment suit; a court given jurisdiction of divorce suits generally has jurisdiction of the subject-matter of each particular divorce suit, &c. In a given case the decision of the court may be erroneous, but it is not void, and cannot be attacked collaterally. • It is valid and binding until reversed on appeal. In the case of Monarque v. Requa, what was the subject-matter % Why, the construction or determination of the validity of a .will. It cannot be doubted that the supreme court has jurisdiction of that class of cases, and therefore its judgment in Monarque v. Requa, even though it might have been reversed on appeal, cannot be called in question by the purchasers here (3 R. S. 6 ed. p. 60, § 21). “ The validity of any actual or alleged devise or will of real estate may be determined by the supreme court, in a proper action for that purpose, in like manner as the validity.of any deed, conveying or purporting to convey lands, might be determined by such court,” &c. Similar power was exercised prior to the statute by the court of chancery, whose powers now belong to the supreme court. The cases cited by the purchasers are all those in which the. court declined to take jurisdiction of the action because there was a remedy at law, and in which that objection was taken in time. But it is a well-known principle of equity that when that objection is not taken by demurrer or answer it is waived, and the court has power and will go on and try the case (Hunt v. Hunt, supra, 228, 230, et seq. See also Bangs v. Duckinfeld, 18 N. Y. 592; Matter of the Empire City Bank, Id. 199; People v. Sturtevant, 9 Id. 263, 269; De Bussiere v. Holladay, infra; Chapman v. Phoenix National Bank, 5 Abb. New Cas. 118; Lange v. Benedict, 73 N. Y. 12, 27, et seq.; Ludlow n. Simond, 2 Cai. Cas. 56; Bank of Utica v. Mersereau, 3 Barb. Ch. 528, 574, 575; Livingston v. Livingston, 4 Id. 287, 290; Underhill v. Van Cortland, 2 Id. 339; Cox v. James, 45 N. Y. 562; Green v. Millbank, 3 Abb. New Cas. 149; Truscott v. King, 6 N. Y. 165; Grandin v. Le Roy, 2 Paige, 509; Le Roy v. Platt, 4 Id. 77; Bank of Utica v. City of Utica, Id. 399; Cumming v. Mayor, &c. of Brooklyn, 11 Id. 596; Hawley v. Cramer, 4 Cow. 717; Bell v. Spotts, 40 Super. Ct. 552; Pam v. Vilmar, 54 Now. Pr. 235; Clarke v. Sawyer, 2 N. Y. 498; Post v. Hover, 33 N. Y. 602; Heath v. Hubbell, 6 Daly, 183; Roderigas v. East River Savings Institution, 63 N. Y. 460; Bolton v. Jacks, 6 Robt. 219, 220. See King v. Baldwin, 17 Johns. 384; Brady v. McCorker, 1 N. Y. 214; Rogers v. Sinsheimer, 50 Id. 646; Sullivan v. Sullivan, 66 Id. 37). Chipman v. Montgomery (63 N. Y. 221) does not conflict with the' views above expressed, or detract from the force of an equity decree, when no objection has been made to the jurisdiction. The language at page 230, “ take jurisdiction,” &c., shows that the reference is not to the power of the court, but to its inclination to exercise it. It is true that the court say, that such a suit should have been at law and not in equity, but the case is not decided on that point. A reading of the opinion shows that the remote interest of the plaintiffs, and the fact that some of them had accepted benefits under the will, had much more to do with it. Bevan v. Cooper (72 N. Y. 317) relates to surrogates’ courts, which are of limited jurisdiction, and to jurisdiction in the sense of total want of power, which may be taken advantage of anywhere, and is not in point. In Bowers v. Smith (10 Paige, 193), the ultimate authority on which all the cases referred to by the purchasers rely, the chancellor says : The defendants, in their answers in this case, have made no objection to the jurisdiction of the court, to declare the construction of the will. And if all those who are or may be affected by the decision of the questions arising upon the various provisions therein contained were before the court, so as to make the decree valid and effectual and binding upon their rights, it might be proper for me to proceed and settle the questions raised in the complainant’s bill:” and at page 204: I have not, therefore, been able to find any ground on which this court would be justified in retaining jurisdiction of this case.” See further as to guardians ad litem, and the validity of judgments against infants (Rogers v. McLean, 34 N. Y. 536; Brick’s estate, 15 Abb. Pr. 40, 43, et seq.; McMurray v. McMurray, 66 N. Y. 175). 4. It was not necessary to give the infant defendants a day after becoming of age. Even if it were, the failure to do so is not a jurisdictional defect. Under the old practice it was by no means settled, when such a provision should be inserted. The better view would seem to be that the necessity was confined to cases where the infant was required to perform some act. No one could take advantage of the omission but the infant, he only in direct proceedings, and his rights as against the decree were limited to showing legal error, fraud, &c. Rights of third parties vested under the decree could not be disturbed; it is also said that in proceedings deemed for the benefit of the infant no day was given. It was only in equity that a day was given, never at law; and it is at least doubtful whether under our Code such a provision is proper. It would seem that the Code places an infant’ defendant, together with his guardian ad litem, on the same footing as an adult. There may be cases undoubtedly in which the court would open a judgment on the motion of a defendant after coming of age, but it would not permit the rights of third parties to be prejudiced thereby (see 3 Barb. Ch. Pr. 2 ed. 210; 2 Tillingh. & S. Pr. 698; 3 Wait. Pr. 632). Brick’s estate (supra, at p. 43, see cases cited), lays down the doctrine that a decree confirming or avoiding a will is conclusive, unless a day is given, which is no longer done.
    II. The provisions of the will relating to the grandchildren are clearly void, and there consequently would be no valid objection to the title, even if there had been no such adjudication as Monarque v. Requa. The provisions of the Revised Statutes, cited by the purchasers (3 R. 8. 6 ed. p. 1103, §§ 17, 19), do not apply to such a case as this. They apply to successive life estates, and to estates during the life of another (per autre vie). In the Monarque will, there clearly are no estates during the life of another, they are all limited on the lives of the takers ; nor are there successive life estates. After the death of the widow, the income goes to the daughters jointly or contemporaneously. If the devise had been to the oldest daughter for life, then over to the next for life, then to the next, &c., section 17 would have applied. This not being the case, sections 14 and 15 apply to this will, and render the devise void (Westerfield v. Westerfield, 1 Bradf. 141, 143; Colton v. Fox, 67 N. Y. 348).
    III. No bond is required of the special guardian ad litem for the lunatic defendant. The order appointing him does not direct it, and none was necessary. In general, guardians ad litem do not give bond, unless they are to receive money. It is only in partition that the Revised Statutes require bonds of guardians ad litem for infants. The statutes are silent as to lunatics, and when in partition guardians 
      ad litem, have been appointed for such, the court has acted under its general powers as the custodian of non-compotes mentis, and has or has not required security in its discretion. Security has often been required, no doubt, but only from analogy to the case of infants. The new Code, section 428, for the first time offers a statutory provision for lunatics, but requires no bond. It was under this section that Mr. Burwell was appointed. Even in the case of a committee of a lunatic, the court may dispense with a bond (2 Crary Sp. Pro. 18). If the court now require a bond, leave should be granted to file one nunc pro tunc.
    
    
      
       See 5 Abb. New Cas. 347, note.
    
    
      
       See Code Civ. Pro. §§ 1,557, subd. 3; 1,542.
      Who are to be parties in partition is prescribed by sections 1,538, 1,540, of the Code of Civil Procedure.
    
    
      
       For a further distinction, as to the territorial limits of jurisdiction, see Landers v. Staten Island R. R. Co., 14 Abb. Pr. N. S. 346, and note.
    
   Andrews, J.:

We are of opinion that the purchaser should not be compelled to complete his purchase.

Jeremiah H. Monarque died in 1864, seized of the premises sought to be partitioned in this action, leaving a widow and four daughters and several grandchildren (the children of two of the daughters) surviving him. By the first clause of his will he gave to his wife the use of all his real and personal estate during her life. The second clause is as follows:— “ I give and bequeath the income arising from my estate to my daughters—Ellen Requa, Louisa Dixon, Eliza and Mary—to be divided between them, share and share alike, during their and each of their respective natural life, and remainder to their respective children, and to their respective heirs and assigns forever.” By the third clause he directed that if either of his daughters should die without lawful issue, the share of said deceased daughter or daughters “shall be divided between the survivor or survivors of them, share and share alike, and to their children respectively as before expressed.”

There was no illegal suspension of the power of alienation of the property devised. The manifest design of the testator by the first and second clauses of the will was to give successive life estates in the property, first to his wife and then to his daughters, remainder in fee to their children; and this is the construction of the language used.

The gift of the income, by the second clause, to his daughters for life was equivalent to a devise to them of a life estate in the land (Kerry v. Derrick, 8 Co. 95 b; Cro. Jas. 104; Earl v. Grim, 1 Johns. Ch. 494; Schemerhorne v. Schemerhorne, 6 Id. 70; 3 Washb. on Real Prop. 450). But the devise to the daughters for life, although embraced in a single clause in which all are named, is, by the well settled construction of similar clauses, a devise to each in severalty of a life estate in one-fourth part of the property devised (Savage v. Burnham, 17 N. Y. 561; Everitt v. Everitt, 29 Id. 39; Stevenson v. Lesley, 70 Id. 512).

The consequence is that on the termination of the life estate of the widow, and the death of any daughter of the testator leaving children, the remainder in fee as to the one-fourth part of the estate would immediately vest in possession in such children. The absolute ownership or power of alienation of the estate is not, therefore,, suspended beyond the period of two lives in being at the death of the testator.

It is not material to consider the third clause of the will as bearing upon this question. Whatever construction may be given to that clause, the death of the second life tenant is the period when, under either clause, the fee of the share of such life tenant vests absolutely in the devisees and beneficiaries. The remainder, given by the second clause of the will, vested, upon the death of the testator, in the children of the testator’s daughters living at that time, subject, however, to open and let in after-born children, who might come into existence during the life of the mother (2 Jarm. Wills. 75; 2 Washb. on Real Prop. 511, and cases cited).

' Three of the daughters of the testator are still living, and each of them may have children, not yet in esse, entitled to take under the will. It is quite certain, therefore, that unless the contingent interests of unborn issue of the daughters have been in some way barred, the title of the purchaser in the partition proceedings, if he shall accept the conveyance tendered him, will be imperfect.

It is claimed that the judgment in the suit brought for the construction of the will, declaring the second and third clauses to be void, is conclusive as to the invalidity of the will. That action was brought by one of the daughters, and the other daughters and widow and grandchildren of the testator were joined as defendants. The adult defendants did not answer, and a general answer was put in by the guardian ad litem of the infants. The case was submitted without evidence. No objection was taken to the jurisdiction of the court, and the judgment was, as may be inferred, practically a judgment by consent.

The case was not a proper one for bringing an action for the construction of a will. There was no trust or other element to justify invoking the jurisdiction of the court for that purpose (Bowers v. Smith, 10 Paige, 193; Post v. Hover, 33 N. Y. 593; Chipman v. Montgomery, 63 Id. 221). But the court having entertained jurisdiction, and no objection thereto having been made, it may be, as is claimed by the plaintiff, that the judgment is conclusive upon the parties thereto (Bowers v. Smith, supra; Clark v. Sawyer, 2 N. Y. 498). It is not necessary now to determine this question; but the judgment cannot bind the contingent interests of children of the testator’s daughters who may hereafter be born. They, of course, could not have consented to the action, and are not concluded by the judgment therein.

Ñor does the judgment in the partition suit bar the future contingent interests of persons not in esse. A judgment and sale in partition may conclude contingent interests of persons not in being, but this is only in cases where the judgment provides for and protects such interests by substituting the fund derived from the sale of the land in place of the land, and preserving it to the extent necessary to satisfy such interests as they may arise (Mead v. Mitchell, 17 N. Y. 210; Brevoort v. Brevoort, 70 Id. 136).

The complaint in this case makes no reference to the fact that any persons other than the plaintiff and her mother and sisters have or may have any interest in the premises in question. On the contrary, it avers that by the will, and the judgment in the suit for the construction of the will, the plaintiff and defendants, Eliza Requa and Louisa Dickson, became and are entitled to the fee of the lands, subject to the life estate of their mother. The claim of title made in the action by the plaintiff and her sisters is in hostility to the will, and as heirs-at-law of their father. The judgment in the action takes no notice of the rights of unborn issue, and does not bar or conclude them. The court did not undertake to pass upon their rights, or to protect them by the judgment.

The order of the general and special terms should be reversed and the motion denied, with costs.

All the judges concurred.

Order reversed and motion denied. 
      
       Reversing 29 Barb. 112.
     
      
       Modifying 9 Sun, 637, which modified and affirmed 49 Sow. Pr. 229.
     
      
       See 6 Abb. New Oas. 445.
     
      
       Affirming 4 Hun, 739.
     
      
       See also Clemens ». Clemens, 87 N. T. 59; Chism ». Keith, 1 Sun, 589; Brevoort e. Grace, 53 IT. T. 245.
     