
    In the Matter of the Sale of Real Estate of John P. Dodge, deceased, and others, App’lts, v. Joseph T. Stevens, Resp’t.
    
      (Court of Appeals,
    
    
      Filed June 7, 1887.)
    
    1. Infant, sale of real estate of—Contingent remainder.
    John P. Dodge devised the premises in question to his widow, but in case she remarried, to his daughter Catharine in fee. The mother married in 1879. But in 1870 the interest of the daughter was sold through a special guardian to Julia A. Coulter, by order of the court. A purchase-money mortgage was taken by the guardian. In 1879, he foreclosed and bid in the property in his own name, but gave a receipt as special guardian. He again mortgaged the premises to Stevens to secure a debt' ue from the testator, but Catharine obtained a cancellation of the mortgage and a conveyance to her of the title. Stevens now claims that Catharine’s title stands upon her father’s will, as the sale to Coulter was without jurisdiction and void. Held, error, that appellants' interest as devisee was the subject of sale, and the title passed to Mrs. Coulter in 1870, that as more than three years elapsed after the granting of letters, before this application, in 1883, the premises conveyed were not liable to sale under them, Laws 1873, chapter 311. Andrews, J., dissenting.
    3. Same.
    It is of no consequence that subsequently the title again vested in the plaintiff. It was enough that it was at one time vested in a purchaser for value and in' good faith. It was at that time freed from liability for the testator's debts, and that liability did not again attach.
    3. Same—2R. S., 194, §170—“Seized.”
    3 Revised Statutes, p. 194, section 170, related to “the conveyance of lands by infants, and the sale and disposition of their estates,” and when it provided for an application by such a person to the court for the sale or disposition of “ his property,” the words “ seized of any real estate ” must be taken to have had the same meaning as similar words in other sections, and the word “seized” to be equivalent to “ owning.”
    Appeal from supreme court general term, third department.
    
      Petition for sale of real estate of JohnP. Dodge, deceased.
    
      Geo. W. Weiant, for app’lt; T. F. Bush, for resp’t.
   Danforth, J.

The proceedings which led to this appeal were commenced before the surrogate of Sullivan county on the fourth of December, 1882, and resulted in a decree (1) establishing the claim of Stevens as a creditor of the decedent John P. Dodge, by virtue of a bond executed by him to one Curtis, and through various mesne assignments transferred to the petitioner; and (2) directing a sale of certain real estate, called the “Dodge Farm,” for the purpose ■of paying the debt so established. Catharine E. Dodge, an infant, was a contestant. She claimed to be the owner of the farm, and also that the right of the petioner to maintain the proceeding was barred by the statute of limitations. Upon appeal to the supreme court, the decree of the surrogate was affirmed, and from the judgment there rendered she now appeals to this court. Both parties claim through John P. Dodge, and the questions presented are twofold: First, as to the character of the appellant’s interest in the land; second, whether the proceedings to subject it to sale are within the statute. John P. Dodge died leaving a will which in May, 1869, was admitted to probate, and letters testamentary issued to John A. Thompson as executor. The testator devised the premises now in question to his wife so long as she remained his widow, and in case she should not again marry he gave them to her in fee, but in ■case she remarried then he devised the same to his daughter Catherine, the appellant, in fee. It was held, in a former controversy between the parties who are now before us, that the mother took a fee in the farm determinable upon her remarriage, and the daughter a contingent fee, depending upon the remarriage of her mother; and, that event having happened in February, 1879, she then became, so far as the will was concerned, seized of an absolute estate in the farm. Dodge v. Stevens, 94 N. Y., 209. It then appeared, however,—and the same facts are now before us,— that in 1870, the daughter being an infant, her interest was gold through a special guardian, by order of the court, to one Julia A. Coulter, and in pursuance thereof a conveyance was made to the purchaser. At the same time the mother also conveyed her interest to the same person. The consideration for the two conveyances was $7,300, $5,000 of which was secured by a bond and mortgage running to the special guardian. In 1879 he foreclosed the mortgage, and on the sale bid in the premises in his own name for $5,00ti, but giving a receipt as special guardian for the purchase pionoy. He afterwards mortgaged the property to Stevens to secure a debt due him from the testator, and which it is to be inferred is the same debt for the enforcement of which these proceedings are instituted. Stevens undertook to foreclose that mortgage, and Catherine, in an action against him and Thompson, obtained a judgment for the cancellation of the mortgage, and a conveyance to her of the title acquired by Thompson on the foreclosure of the Coulter mortgage, declaring the premises to be her property. That action proceeded upon the ground that, in taking title to himself, Thompson was guilty of a violation of trust, and the purchase voidable at the election of the cestui que trust. Nothing more was decided. The sale to Coulter was not impeached, although claimed by the defendant Stevens to have been invalid. He reiterates the claim now, and in answer to the appellant’s contention,"that her title stands not alone upon her father’s will, but upon the foreclosure of the Coulter mortgage, asserts that the proceedings for the sale, in pursuance of which it was given, were without jurisdiction and void. We think this view should not prevail.

Expectant future estates, as defined in the statute, axpressly include all remainders, whether vested or contingent (1 Rev. Stat., art. 1, tit. 2, pt. 2, chap. 1, §§ 9-11, 13), and as such, are descendible, devisable and alienable in the same manner as estates in possession. Id., § 35; Lawrence v. Bayard, 7 Paige, 75; Miller v. Emans, 19 N. Y., 384; Moore v. Littel, 41 id., 66. Catherine was, however, an infant, and so incapable of conveying; and the question is, as the respondent insists, “not what may be aliened by the voluntary act of parties interested, but what may be sold through a statutory proceeding.” The statute then in force (2 Rev. Stat., 194, art. 7, tit. 2, pt. 3, chap. 1, § 170) provides that “any infant seized of any real estate, or entitled to any term for years in any lands, may, by his next friend or by his guardian, apply to the court for the sale or disposition of his property,” and that “any sale or conveyance made in good faith by the guardian, in pursuance of an order of the court, shall be valid and effectual as if made by such infant when of full age.” In behalf of the respondent, it is argued that, as the devise to Catherine was to take effect only on a future contingency—the remarriage of her mother—her interest or right is not within the statute. If that is so, the decision of the court below is correct, for the power of the court to order the sale of an infant’s estate is purely statutory. If it had no jurisdiction, then the sale to Coulter is of no importance, and the appellant’s title is that of devisee only. If it had jurisdiction, its exercise is not open to criticism, and the appellant’s title will stand under the sale to Coulter and by virtue of the act of 1873, infra. In re Jones (2 Barb. Ch., 22), it appeared that the father of certain infants devised his entire estate to his wife for life, remainder to his children. During the wife’s life they applied for a sale of the real estate, stating that they had no other property,, and that a sale was necessary for their support. The application was denied;, the chancellor saying: “ It was not the practice of the court to authorize the sale of a future interest in real estate belonging to infants except under very special circumstances.” No doubt was expressed as to the power to do so, but sufficient reasons were assigned against its exercise.

In Jenkins v. Fahey (11 Hun, 351), the will at the bottom of the controversy gave Cornelia, the testator’s daughter, an estate for life in lands whereof he died seized, remainder to her issue living at her death, with power, in default of issue, to appoint the fee by will. She married and had children. One of these, Ida, an infant, in pursuance of proceedings under the above statute, conveyed all her interest in the premises to one Bush. The supreme court held that under this statute a sale could be ordered only in those cases where the infant was in actual possession of the land, or entitled to the immediate possession thereof, and that, neither expectant estates nor estates in remainder could be sold; and as, at the time of her application for leave to-sell her real estate, Ida had neither the actual possession of the land, nor the legal right to its possession, her interest-'was not divested by the sale, and Bush got no title. Upon appeal the judgment was reversed (73 N. Y., 355), the court saying: “There is the same reason for subjecting the: estates of infants in remainder or reversion to the jurisdiction of the court, and authorizing a sale where the interest- or necessities of the infant require or make a sale expedient,, as in estates in actual possession, ” and held that a remainder-man was to be deemed seized in law of his estate. In that-case it also appeared that the interest of Ida was subject to the contingency that other children might be born to Cornelia, in which case her interest would be diminished to the extent of their shares. Taggart v. Murray, 53 N. Y., 233. So the question of her estate was as uncertain as that of the plaintiff in this case.

And although, in the case cited, the remainder was said to be vested, no stress was laid upon that circumstance, nor did the court consider what the law would be in case of' a mere contingent remainder. I think the statute permits no different construction in the two cases. The interest or right of the plaintiff was a “contingent future estate,” “a contingent remainder in fee, ” an estate ‘ ‘in expectancy;” but however, characterized, it was by the very language and classification of the statute an estate in land. 1 Rev. Stat., 722 It is expressly made “descendible.” 1 Rev. Stat., 735, § 35. The daughter Catherine, therefore, was, as to it, a proper stock of descent. Dying intestate, her heirs would take the remainder, to be distributed in the same manner as an estate in possession. The term “real estate,” as used in the statute, relating to the “title to real property by descent ” (1 Rev. Stat. c. 2, pt. 2, p. 751, § 27), is declared to include every estate, interest, and right, legal and equitable, inlands, etc., except such as are extinguished by the ■death of an intestate, seized or possessed thereof, or in any manner entitled thereto. The statute under which the proceedings in question were taken (2 Eev. Stat, 194, § 170, supra), relates to “the conveyance of lands by infants, and the sale and disposition of their estates,” and when it provides, in language before quoted, for an application by such a person to the court for the sale or disposition of “his property,” the words, “seized of any real estate ” must be taken to have the same meaning as similar words in the sections before cited, and the word “seized,” to be equivalent to the word “owning.” So, also, the “real estate,” or “property” over which, by these words,"the court is given jurisdiction, can have no limit that the definition supplied by the statutes {supra), does not require.

The appellant’s interest as devisee was, therefore, the subject of sale, and the title to the real estate in question passed to Mrs. Coulter on the 19th of April, 1870, by the conveyance executed under the order of the court. More than three years elapsed after the granting of letters of administration on the estate of the testator before the application at the bottom of these proceedings was made, and the premises so conveyed are, therefore, not liable to sale under them. Laws 1873, c. 211. It is of no consequence that subsequently the title again vested in the plaintiff. It is enough that it was at one time vested in a purchaser for value and in good faith. It was at that moment freed from liability for the testator’s debts, and that liability did not again attach.

The other question, that of the statute of limitations, is not without difficulty; but, in view of the conclusion already reached as to the other proposition, it requires no discussion.

The judgment of the supreme court and of the surrogate should be reversed, and the application denied.

All concur, except Andrews, J., dissenting.  