
    Edward O. Johnson, as Committee of the Person and Estate of Anna A. C. Fries, a Lunatic, Appellant, v. William E. Ayres and Webster R. Chamberlin, Respondents.
    
      Sureties on the bond of the committee of a lunatic — liability of, for pi'oceeds of real estate of the lunatic sold by the committee withoict legal authority—they are not estopped by the decree of the court fixing the amount.
    
    The obligation of the sureties upon the bond of the committee of the person and property of a lunatic, given under sections 2337 and 2830 of the Code of Civil Procedure, is to answer for any failure on the part of their principal to account for and pay over upon the order of the court all moneys which may legally come into his hands as such committee, and the sureties are not liable for moneys paid to the committee in consideration of his executing a deed of the real estate of the lunatic where he receives no direction from the court to do so, and the deed is void.
    The fact that the Surrogate’s Court has decreed that the committee pay over such proceeds of sale to his successor does not conclude the sureties, who are not estopped in such a case from questioning such-decree.
    
      Semble, that even had the deed been, executed; pursuant to the direction of the court, the proper disposition of the proceeds of the sale would be secured by the special bond required by section 2351 of the Code of Civil Procedure and not by the bond given under sections 2837 and 3880 of said Code.
    Appeal by the plaintiff, Edward 0. Johnson, as committee, etc., of Anna A. 0. Fries, a lunatic, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Onondaga on the 4th day of November, 1896, upon the dismissal of his complaint after a trial at Chambers, without a jury, pursuant to a stipulation.
    On or about the 15th day of December, 1886, one Anna A. C. Fries was duly adjudged a lunatic by the County Court of Onondaga county, and by the same judgment James A. McFarran was duly appointed committee of her person and estate upon his execut-. ing a bond with sureties in the sum of $7,000, conditioned for the faithful discharge of his duties as such committee.
    Thereafter, and upon the thirtieth day of the same month, McFarran filed his official bond, executed by these defendants as his sureties, in the clerk’s office of Onondaga county, the same having been duly approved by the judge of that county, and he thereupon entered upon the discharge of his .duties as such committee,'and . continued to act as such until about the 11th day of February, 1895, •when he. resigned,, and the‘plaintiff- was appointed in his stead.
    Upon the inquisition in the lunacy proceedings, it" was found that the estate of the lunatic consisted of about $1,000 of personal property and not to exceed $2,500. of real property. •
    .. After .entering upon the performance of his duties, McFarran, as. ■ such committee, came into possession of .the sum of $1,328.50, the avails' of- a policy of life insurance upon .the life, of the deceased husband, of the lunatic; and iipon the 17th day of January,"1887; he receivéd the further sum of $1,515.79, the proceeds of an attempted'sale by him of the lunatic’s interest.in certain real estate which she had' inherited, from her father. - All the moneys received by McFarran were deposited to his credit .in a savings bank, from which they were from time to time withdrawn by him, and of these moneys, so deposited and withdrawn, the sum of .$1,467.53 was properly and legally expended by the committee,.- but the remainder thereof, which was very nearly equal to the amount received by him from .the attempted sale of the interest, of .the. lunatic in the real'. • estate inherited by her, was converted by McFarran to his own use. . . • . •- ■ . :
    At the-time McFarran attempted to dispose of the-lunatic’s interest in the real estate, no proceedings were taken to accomplish that object, but lie- simply executed deeds of such interest, signing the- same, ■“ Anna A. 0. Fries," by • J. A. McFarran, committee, etc.” - ; . ' • '
    In January, 1895, a referee was duly appointed' by ■ the County ■Court of Onondaga county to. take and state the account of such committee, and on the 16th day of. March, 1895, the -referee filed his report showing that at that date the committee was-indebted to-the estate of the.lunatic in the sum of $2,020-08. This, report was subsequently confirmed by the County Court of Onondaga county, ' and an - order was thereupon made directing McFarran to pay over to the plaintiff the sum so found due- from him to the estate Of the .lunatic. ■ No part of .such sum was. ever paid, however, and this . action was brought to recover the same of the- defendants,- as-'sureties upon the official bond of McFarran, who,-, it is conceded, is now insolvent. . -
    
      
      Frank Hopkins, for the appellant.
    
      WillAamn, B. Fuller, for the respondent Chamberlin.
    
      Frank Hiscock, for the respondent Ayres.
   Adams, J.:

By reference to section 2337 of the Code of Civil Procedure it will be found that the committee of the person or property of a lunatic is not invested with any power to act as such until security is given, if required by the court, in the same manner and to the same effect as is exacted of a person who is appointed guardian of the estate of an infant.

In this case it is made to appear that the court did require of McFarran, as a condition of .his- exercising the function's of committee of the' person and estate of the lunatic, that he should furnish satisfactory security; and this condition was complied with by the filing of a bond in the penalty of $7,000, to which these defendants were' sureties. It becomes important, therefore, to ascertain the nature and extent of the obligations which they' thereby assumed. ’ •

It is provided by section 2830 of the Code of Civil Procedure that, “Before letters of guardianship of an infant’s property are issued- by the Surrogate’s Court, the person appointed must, besides taking an official oath, as prescribed by law, execute to the infant, and file with, the surrogate, his bond, with at least two sureties, in a penalty, fixed by the surrogate, not less than twice the value of the personal property and of the rents and profits of the real property, conditioned that the guardian will, in all things, faithfully discharge the trust reposed in him and obey all lawful directions of the surrogate touching the trust; and that he will, in all respects, render a just and true account of all money and other property received by him and of the application thereof and of his guardianship whenever he is required so to do by a court of competent jurisdiction.”

Thus it will be seen that the measure of the defendants’ undertaking was that the committee should faithfully discharge the trust reposed in him, render a just and true account of all moneys and other property received by him, and obey all lawful directions of the court respecting his trust. And this action is brought upon the theory that the defendants’ principal had failed • to observe one of the conditions of the bond hr suit, m that he has omitted to pay over to the plaintiff, as his successor in office,, the moneys remaining in '■ his hands, which, as we have seen, were the proceéds of the lunatic’s ■ interest in certain real estate, which the. committee had assumed to . sell without first applying to the court for permission so to do. The primary question to be considered, therefore, is. whether the’ defendants’ undertaking can be said to include a liability for the consequences of such a breach as the one to which reference has just been made. , •

It is, of course, elementary that contracts of sureties must, be' strictly construed, and that they, will not. be extended or enlarged by implication (People v. Backus, 117 N. Y. 196).; and to make a direct application of this rule to the case in . hand, it may be safely asserted that the full measure of the defendants’ obligation was to answer for any failure upon the part of their- principal to account for and pay over . Upon the order of the court all moneys which might legally come into his hands as such, committee. And if this, be true, the converse of the proposition must "be - equally so, that if the committee, by a. proceeding which was clearly unlawful and ultra vires, came into possession of moneys or property under a claim that the same belonged to the lunatic, the .defendants would not be liable therefor as sureties upon his bond. (Field on Law of Infants, etc., § 148; Livermore v. Bemis, 2 Allen [Mass.], 394; Merrells v. Phelps, 34 Conn. 109 ; Ballard v. Brummitt, 4 Strob. Eq. [S. C.] 171.)

A satisfactory solution o.f. the question under consideration can only be reached, therefore,, by determining whether or not McFarran, as such committee, was authorized to deal with the real estate of his cestui que Lust in. the manner he did, of, in other words, whether, in selling her. real estate without first' obtaining an order of the court so to do, he acted so far outside and beyond the .scope of his authority as to relieve the defendants from liability upon his bond.'

By reference to section 2339 of the Code of Civil Procedure it' will be seen that, in respectof a lunatic’s real estate, the powers of a committee are confined within very stringent limits; for, after declaring that a committee is at all times subject to the direction and control of the court, it provides further: “But a committee of the property cannot alien, mortgage, or otherwise dispose of, real property, except to lease it for a term not exceeding five years, without the special direction of the court, obtained upon proceedings taken for that purpose, as prescribed in title seventh of this chapter.”

The “ proceedings ” here spoken of are statutory and special in their nature; their design is to divest the lunatic of his title to real estate and to transfer it to another, and it is settled beyond all cavil that to accomplish this object, which is clearly in derogation of the common law, every prerequisite must be fully and literally observed. (Battell v. Torrey, 65 N. Y. 294; In re Valentine, 72 id. 184; Ellwood v. Horthrup, 106 id. 172; Pharis v. Gere, 110 id. 336.)

It is hardly necessary to specify the various. requirements of this special proceeding which, in this particular instance, the committee failed to fulfill, because it is conceded that he ignored them altogether and apparently supposed that he could convey the lunatic’s title just as he could his own, that is, by the execution and delivery of an ordinary deed; and that is all that he attempted to do. That he thereby transferred no title, and that the purchaser took nothing of greater value than a piece of blank paper are facts which must be apparent to any one. ■ And it must be equally clear that the money which was paid MeEarran, in consideration of this attempted transfer, did not come lawfully into his hands; neither did it belong to his cestui que trust, and it would, therefore, seem to follow that whatever right of action the purchaser might have to recover his money, the defendants, as sureties upon the bond of the committee, never assumed any liability for the failure of their principal to account to his successor in office therefor. (Lyman v. Conkey, 42 Mass. [1 Metc.] 317; Williams v. Morton, 38 Maine, 47; Henderson v. Coover, 4 Nev. 429.)

While discussing this feature of the case it may be worth while to suggest that, even had resort been had to the statutory proceedings for the ■ sale of the lunatic’s real estate, these defendants, as sureties upon the general bond of the committee, would have incurred no additional liability by reason of the proceeds of such sale coming into the hands of the committee, inasmuch as a special and separate bond is required in such cases. (Code Civ. Proc. § 2351.)

It is insisted, however, that the defendants are estopped from questioning the order of the County Court, which confirmed the report of the referee and adjudged that HcFarran, as committee, was chargeable with the moneys which came1 into his hands from the attempted sale of the lunatic’s real estate; and it only remains to determine what, if any, importance attaches to this contention.

In considering this question it may be assumed that the defendants, as sureties upon the bond of the. committee, are privy to all proper proceedings against their principal, and that if tire committee had accounted in the usual manner, the defendants would ordinarily be concluded by any judgment or decree which would conclude their principal. (Harrison v. Clark, 87 N. Y. 572; Deobold v. Oppermann, 111 id. 531; Douglass v. Ferris, 138 id. 192.)

But while the rule just stated is not to be questioned as a general proposition, it nevertheless has its limitations, one of which is that the judgment or decree against the principal must proceed from a court, having jurisdiction, to make the same, and it must also be free from collusion and fraud. (Deobold v. Oppermann, supra ; Douglass v. Ferris, supra; Drowning v. Vanderhoven, 4 Abb. N. C. 166.)

In this case, as we have seen, the committee received these moneys wrongfully; they constituted no part of the estate of his cestui qué frust, and, therefore, in a proceeding against him in his official capacity, the court entertaining the same had no right to make any order or judgment relating thereto. But whether or not this may be regarded as an available defense to the sureties in the present action, we think there is another and complete answer to the plaintiff’s contention, which is, that the power to sell the real estate of ■the lunatic was not conferred upon the committee by the order appointing him. It was a separate and distinct power which, , as has already been pointed out, can only be conferred by a strict compliance with all the requirements of the statute creating it, one of which ■ is that an additional bond shall be given as security for the proper disposition of the moneys realized from the estate sold.

Now, all that these sureties have undertaken to become responsible for is, for the faithful performance of the usual and ordinary duties assumed by their principal, as committee, and not for any special obligation which he might assume while in the discharge of his trust, and for which the law provides and' exacts additional security. To so construe, therefore, the bond-in suit as to bind the sureties to some responsibility which clearly was not within their contemplation, nor within the contemplation of the law when they executed it, would extend their liability to' a point beyond that which we think the case will warrant (White v. Ditson, 140 Mass. 351, 360); and this the order of the County Court does not attempt to do.

These views necessarily lead to an affirmance of the judgment appealed from.

Judgment affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  