
    Henrietta Aldrich, App’lt, v. Margaretta Funk et al., Resp’ts
    
      (Supreme Court General Term, Third Department,
    
    
      Filed May 1888.)
    
    1 Will—Construction of— Life, estate of widow until marriage—Effect of marriage—Vested remainder
    Tile testator by his will devised his real and personal estate to his wife for hei use and benefit during her life and as long as she should remain a widow, and aftei her death or day of marriage he then devised all his real estate to his two children, if they should he of the age of twenty-one years, if not. to remain under the control of his executor until they should arrive at that- age. then to be divided between them, their heirs and assigns The widow, in 18-56, married Janus G. Holmes The plaintiff was one of the children of the testator In 1863 one of the children, being then of age. with the widow as trustee for the plaintiff, conveyed the premises to one Spath Held.•that the plaintiff, by the will, became seized of a vested estate in the land, subject to the right- of the widow to use and enjoy the same during her natural life, or until she should marry again, and that at the- time of her marriage to Holmes she ceased to have any interest in the premises, and the title of the plaintiff became free from encumbrance
    :2 Trusts—Requisites to constitute—What necessary to create a power in trust °
    
    
      Held, no valid trust was created in the executor by the provision in the will, no authority is conferred to receive the rents and profits . noi is there any direction as to the disposition of the same It does not create a power in trust, as no specific duly is conferred upon the executor nor is he vested with any specific authority over the real estate
    3 Proceedings -to sell, infants' real property—Requirements of the Revised Statutes—Vol 3, page 303, § 174, Edmunds' ed — Substan TIAL COMPLIANCE WITH REQUIREMENTS
    The Revised Statutes, under which the application to sell the infant's real estate was made (vol 3 page 303, § 174,. Edmonds’ Ed ). provides upon filing of the bond the court may pro-eed in a summary manner by reference to a master to inquire into the merits of such application The intention of the legislature was that such inquiry might be made by the court or by a. reference to a master, as the court should deero proper, ieaving the matter to its discretion While the validity of such proceeding» depends upon an observance of the statute, yet a substantial compliance-will preserve jurisdiction
    4. Same—Substantial compliance with the requirements of the statutes—When the infant will be estopped from questioning THE PROCEEDINGS
    Proceedings were instituted in 1864 to sell the plaintiff’s interest in the premises in question She was then seventeen years of. age and appeared in the proceedings as petitioner A special guardian was appointed and a bond was filed He reported the contract of sale. His report was confirmed and an order of court entered directing the sale The premise» were thereupon sold, in 1864, to a bona fide purchaser This action was begun in 1884 Held, that under such a state of facts she should be held, to have ratified and confirmed the sale
    This is an appeal by the plaintiff, from a judgment entered, in the above action in favor of the defendant upon the re - port of a referee.
    
      Hunt & Whedon, for app’lt, J K. Long and George Day,. for resp’ts.
   Ingalls.. J

This action is instituted by the plaintiff to. recover possession of the undivided' one half of lot No 151, Third street in the city of Troy, The plaintiff and defendants, derive title to the premises from John W. Fonda, as the common source of title. the plaintiff, as a devisee; under the last will and testament of said John W. Fonda, the defendant, Margaretta Funk, as a purchaser of the-premises for a valuable and. adequate consideration from William Spath. who was, at the time of such purchase in 1865, in the actual possession, and occupancy thereof, claiming title thereto. Since her purchase the defendant, has been in the actual posession of the premises, claiming, title thereto under her deed from Spath. When the defend - ant, Margaretta Funk, purchased the premises the buildings-thereon were in a dilapidated condition" and were taken down, and a substantial brick dwelling house was erected, The title of the said, defendant had never been questioned, until the commencement of this action in May, 1884.’ John W. Fonda who resided in the .city of Troy, made his last will and testament bearing date October 25, 1850, as follows:

I, John. W Fonda, of the city of Troy, in the county of Rensselaer, and state of New York, being of sound mind, do hereby make this my last will and testament, to wit:

First.. I will and direct all my just debts and funeral charges be paid by the executor and executrix hereinafter named.

Second. I give and devise to my wife Martha, all my real and personal estate of every name and nature, wheresoever the same may be, for her use and benefit during her life- and as long as she may remain a widow, and after her death or day of marriage, then I give and devise all the real estate to be equally divided among my two children, if they should be of the age of twenty-one years, if not to remain under the control of my hereinafter named executor till they shall have attained the ages of twenty-one years each, then I will the said real estate to be equally divided between my two children, their heirs and assigns.

Third. I do will and declare that the devises and bequests hereinbefore named and made to my wife Martha, are by me meant and intended to be in lieu, bar and satisfaction of all and every claim of dower or thirds she could or by law might have at the time of my decease, of, in or to my estate and effects, real or personal, or any part thereof.

Lastly. I do hereby nominate and appoint John Gardner of the city of Troy, executor, and my wife Martha, executrix, of this my last will and testament, and I do hereby revoke all and every former will by me made. In witness whereof, I have hereunto set my hand and seal this 25th day of October, 1850.

JOHN W. FONDA. [l. s.]

Signed, sealed, published and declared by the testator, John W. Fonda, to. be his last will and testament in the presence of us, who, at his request, in his presence and in the presence of each other, have subscribed our names as witnesses.

JAMES THORN,

County of Rensselaer, State of New York.

CHARLES COLE,

County of Rensselaer, State of New York'.

He died about the first day of November, 1850, and the will was admitted to probate November 16, 1850, as a will of real and personal estate. John W. Fonda left him surviving his widow, Martha F. Fonda, and two children, Philip W. Fonda, who was at the death of his father twelve years of age, and Henrietta, the plaintiff, who was three years of age. In 1854, John Gardner, who was named in 'the will as executor, was removed from such office by the surrogate of Rensselaer county. The widow, then Martha F. Fonda, was the sole remaining executrix. In 1856, she married James G. Holmes. Philip W. Fonda, on the 14th day of September, 1863, being then of age, with his mother, acting as trustee for Henrietta, the plaintiff herein, conveyed the premises to said William Spath for the consideration of $900, taking back a bond and mortgage upon the premises for $500 to secure a portion of the purchase money, which mortgage, with the bond accompanying the same, was executed by the said William Spath to Martha F. Holmes, as trustee lor Henrietta Fonda, her daughter. The mortgage contained this provision: “Provided, that at the time when the said sum of $500 shall become payable and due, the said Henrietta Fonda shall tender and give to said William Spath a quit claim deed for the premises hereinbefore described, the said amount of $500 being a part of the purchase money/’ In the year 1864, the plaintiff, being then nearly eighteen years of age, and being the wife of Henry B. Aldrich, to whom she was married in 1864, desired to obtain the money secured by the bond and mortgage, and through her mother, who had assumed to act as her trustee, and with whom she had resided up to her marriage, and with whom she was then residing, applied for the money. Mrs. Holmes, who then resided at Jeddo, Niagara county, in this state, visited Troy, for the purpose of obtaining such money for her daughter, the plaintiff herein.

A question was raised in regard to the conveyance by Henrietta, which was provided for in the mortgage, she not having reached majority, being only about eighteen years of age. And the money by the terms of the mortgage was made payable in five years from the date thereof, which would extend to a period when she would become twenty-one years of age. But to oblige the plaintiff, for whom her mother was acting, Mr. Spath consented to pay the money, in advance of the time fixed therefor, provided he could obtain a valid deed from Henrietta. To accomplish this, an application was made to the county court of Rensselaer county, where the premises were situated, for leave to sell and convey the interest of the plaintiff in such premises. The petition was signed and verified by Herietta Aldrich, the plaintiff, in which she stated, among other things, that she was seventeen years of age, and described the premises, and stated her interest therein, and how derived, and the fact that her brother Philip W. Fonda had conveyed his interest in the premises to William Spath, and that her mother had joined in the deed; that the premises were worth $900; and that her interest therein was unproductive, and liable any time to be partitioned by action, which would be expensive; that she owned no other personal or real estate, except wearing apparel.

She prayed the appointment of James Thorn, who resided in the city of Troy, as special guardian for the purpose of selling such real estate. She stated further that she had no general guardian.

The court entertained the proceeding and investigated the'facts, and made an- order appointing Mr. Thorn such special guardian, upon his executing a bond, with securities, as prescribed by the order, which he did, and the same was approved by the court.

. The special guardian reported to the court a contract for the purchase of the said real estate, as follows:

Rensselaer County Court:

To the Honorable Gilbert Robertson, Jr.. County Judge of the County of Rensselaer.

In pursuance of an order of this court made in the above matter on the 29th day of December 1864, authorizing and empowering me, as the special guardian of the infant therein, to contract for the sale and conveyance of all the right, title and interest of the said infant in the real estate mentioned and described in the petition of the said infant in this matter, dated the 23d day of December, 1864, and to report upon oath the terms and conditions of the agreement made by me with the purchaser or purchasers before executing any deed or conveyance of the said premises, I, the said special guardian, do certify and report that I have entered into an agreement, subject to the approbation of this court, with William Spath, of the city of Troy, for the sale of ah the right, title and interest of the said petitioner to the said real estate for the sum of §500 in cash on the executing and delivery to him of the deed of the special guardian, duly appointed for that purpose. And I do further certify and report that the costs and disbursements of these proceedings amount to thirty dollars, after deducting which sum from the purchase money as aforesaid there will remain the sum of $470. And I further report that the above are the best terms upon which I could sell the said premises All of which is respectfully submitted.

JAMES THORN.

Dated December 30, 1864.

The report was duly verified by the oath of the special guardian, which accompanied the report.

The report was confirmed by the court and a conveyance was directed, which was executed by the special guardian in due form to William Spath. And the deed recited the proceedings which had been taken in the county court with considerable particularity. Upon the receipt of the deed William Spath paid to William Thom, the special guardian, the money, who, after deducting thirty dollars, the costs of the proceedings, paid the balance to Mrs. Holmes, the mother of the plaintiff, who receipted the same. The evidience shows not only, that the plaintiff lived with her mother previous to, and at the time of her marriage, and when the proceedings were prosecuted for the sale of her interest in the real estate, but that sho resided after such sale, and for a period of about nine years, within a fourth of a mile of the residence of her mother, and there resided at the death of her mother in 1874. And that during such time she saw her mother nearly every day. It is very evident from all the facts and circumstances, déveloped by the evidence that the sale of the real estate, was with the knowledge, consent and by the procurement of the plaintiff, who had attained an age, when she was capable of understanding and appreciating her rights. W e think it may be fairly inferred from all the circumstances, that the plaintiff received and enjoyed the proceeds of the sale, especially so as she did not deny the same upon the trial, which she might have done as a witness if it were otherwise. The silence of the plaintiff for such a length of time, in regard to her pretended claim, after the sale, and after the death of her mother, is a significant circumstance against the same.

The plaintiff has never offered to return the money which was paid for the premises, and which it is but reasonable to assume she received. Spath purchased in good faith, and paid an adequate consideration for the premises. And the defendant Margaretta Funk, purchased the same of Spath, and paid therefor the full value, and has since occupied the premises. The equities seem undeniably, with the defendants, who were entitled, we think, to every reasonable intendment in support of their title. By the will of John W. Fonda, the plaintiff became seized of a vested estate in the land, subject to the right of the widow of the testator to use and enjoy the same during her natural life, or until she should again marry. She married James G-. Holmes, in 1856, and from that period she ceased to have any interest in the premises ana the title of the plaintiff became free from inucumbrance. Ackerman v. Gorton, 67 N Y., 63; Livingston v. Geeene, 52 id., 118; Lawrence v. Cooke, 104 id., 632; 6 N. Y. State Rep., 772; Life In. Co. of N. Y. v. Shipman, 12 N. Y. S. Rep., 802; Moore v. Littel, 41 N. Y. 66; Radly v. Kuhn, 97 id., 27, 35; Tracy v. Ames, 7 Lans., 500; Manice v. Manice, 43 N. Y., 380.

By the clause in the will “ if they should be of the age of twenty-one years, if not, to remain under the control of my hereinafter named executor, till they shall have attained the age of twenty-one years each, then I will the said real estate to be equally divided between my two children, their heirs and assigns,” the testator evidently intended to refer not to the period when the estate should vest in the children but to the time when they should enter upon the actual possession thereof, or when the division should take place.

The expression “ to remain under the control of my hereinafter named executor ” is so vague, and indefinite'that it is really difficult to apprehend what the testator intended thereby. No valid trust was created by that provision— there is no authority conferred upon the executor to receive the rents and profits. Nor is there any direction in regard to the disposition thereof. Chamberlain v. Taylor, 105 N. Y., 191. Nor does the will direct in what manner or for what purpose such control should be exercised. Revised Statutes, Edmunds Ed., vol. 1, page 678, § 55. Such provision is equally ineffectual to create a power in trust, as no specific duty is conferred upon the executor; nor is he vested with any specific authority over the real estate. Indeed Gardner, the executor, did not assume to exercise any control of the real estate, and was removed as executor by the surrogate of Rensselaer county in the year 1854. It is apparent from the conduct of Gardner, and of all the parties interested in the estate, that no authority was recognized in him to control the same in any respect. The sale cannot be regarded as having been made contrary to the provisions of the will. Lawrence v. Cooke, 104 N. Y., 632; 6 N. Y. State Rep., 772; Manice v. Manice, 43 N. Y., 303; Weeks v. Cornwell, 104 N. Y., 325; 5 N. Y. State Rep., 632. The plaintiff possessed such an interest in the land, as authorized its sale, under the proceedings instituted therefor under the provisions of the Revised Statutes, entitled “of proceedings in relation to the conveyance of lands by infants, and the sale and disposition of their estates. Vol. 2, page 202, Edmunds Ed. The county court of Rensselaer county, in which the premises were situated, possessed jurisdiction to entertain the proceedings. Dodge v. Stevens, 105 N. Y., 585; 8 N. Y. State Rep., 671; Jenkins v. Fahey, 73 N. Y., 355. The proceedings are assailed by the plaintiff upon the grounds that in some respects they were irregular, and to such an extent that no title was conveyed thereby to the purchaser, as against the plaintiff, who was an infant; and when the petition was offered as evidence it was objected to by the plaintiff’s counsel upon the grounds, it does not furnish the foundation of any proceeding in any court.

Second. It is not executed in the manner required by law, or any paper is required to be the foundation of a proceeding in court, or become matters of record.

The objections are so vague and indefinite that it is not easy to perceive what question the plaintiff’s counsel intended to raise. No particular defect is specified, which was necessary in order to enable the court to understand whether they were aimed at a matter of form or substance. Again, if the defect complained of had been specified, it might have been supplied, if any was found to exist. The petition seems to contain sufficient to answer the requirement of the statute, and to constitute at least a substantial compliance therewith. The defendants offered, in connection with such petition, from the record of the Rensselaer county clerk’s office, all orders and proceedings had and taken upon, and under said petition, including the order appointing James Thorn special guardian to sell the real estate of Henrietta Aldrich, the petitioner therein, and plaintiff in this action, and the bond of such special guardian. To this offer the plaintiff’s counsel objected upon the same grounds interposed to the petition. “Also as affording no grounds for the court to entertain the proceeding.” The objections thus interposed are equally insufficient to raise any question, or to prove available to the plaintiff, the proceedings were admitted by the referee, and are contained in the printed case. The defendants offered in evidence the deed executed by the special guardian, James Thorn, to William Spath, to which the plantiff’s counsel objected upon the same grounds. And, further, that the deed was void, as being in contravention of the statute, relating to the sale of infants’ real estate. The objections were overruled, and the deed, was received.

Upon the presentation of the case in this court, the counsel for the plaintiff stated certain objections to the proceedings, which are claimed to be fatal thereto, which we will proceed to consider. One is that it does not appear that the application was made by the next friend or guardian of the ' infant. No such objection was pointed out when the petition was offered. If it had been specified, the defendants might have possibly supplied the seeming omission, and there is nothing to show that it could have been done. The petition states that the plaintiff was of the age of seventeen years, and we may assume that she was competent to .understand the same, and to appreciate her rights. She had also the co-operation and advice of her mother, whom she intrusted with the proceeding, and who may have acted as her next friend. The evidence shows that she was actively participating in the proceedings. The statute does not describe any particular form to be observed by the person who presents the application as next friend, and nothing appearing to the contrary, we may properly assume that the ceremony was sufficiently observed, in getting the application before the court, to confer jurisdiction. In the Matter of Mary Jane Whitlock, 19 How. 380; O'Riley v. King, 28 id. 409.

In the case last cited Judge Morrell remarks: “ I see no reason why he may not by his next friend apply orally; the courts have established rules, but they are mere rules which the court may in its direction disregard.” In Cole v. Gourlay, 79 N. Y. 528, Judge Miller, at p. 535, says: “A departure from a rule of the court does not impair the validity of the proceedings.” The learned judge refers in this case to O'Riley v. King, supra. It is further objected that the affidavit of disinterested persons was not produced.” No such objection was made on the trial. It does appear that the affidavit of Alfred B. Nash was furnished, wherein he stated that he was acquainted with the situation and value of the premises, and that they were not worth to exceed $800. And that he was not related to the petition, or in any manner interested. In Cole v. Gourlay, supra, this objection has been answered. It was further objected in this court that no reference was ordered by the county court, to ascertain and report the truth of the matters contained in the petition. No such objection was made at the trial, and we deem it too late to raise it upon appeal. We do not deem such omission fatal to the proceedings, even though the question had been properly raised at the trial. The Revised Statutes under which the application was made (vol. 2, p. 203; 174 Edmund’s ed.) provides “upon filing such bond the court may proceed in a summary manner, by reference to a master, to inquire into the merits of such application.” We think it was the intention of the legislature, that such inquiry might be made by the court, or by a reference to a master, as the court should deem proper, thus leaving the matter to its discretion. In some cases of this nature, the facts are few and simple, and easily ascertained, in others complicated and intricate; and in the former no reference would be necessary, but in the latter hardly to be dispensed with. The view of the statute thus taken seems in harmony with its spirit, and necessitates only the interpolation of the word “ or ” to bring it clearly within the letter. It seems scarcely consistent to hold that the court proceeds in a summary manner, to inquire into the merits of an application, when a reference is directed to ascertain the facts. In the Matter of McIlvaine, Abbott’s Prac. Cas. 91, it was held by the general term of the first district, that the reference might be dispensed with. That was like the present, a proceeding under the Revised Statutes.

Our attention has been called to the case in the Matter of Benjamin Valentine, a lunatic (72 N. Y., 185). In which case it was held that a reference to inquire into the facts was necessary, for the reason that the statute, under which that application was made, expressly required such a reference, (Revised Statutes, vol. 2, p. 55, § 12, [Edmunds ed.]), which is as follows: “On the presentation of such petition it shall be referred to a master.” Comparing the two statutes referred to, it seems quite apparent, that the legislature intended to make it discretionary with the court, in a proceeding for the sale of the real estate of an infant, whether, to inquire into the merits of "the application in a. summary way, or to direct a reference. While the validity of such a proceeding depends upon an observance of the statute, yet a substantial compliance will preserve jurisdiction. The case last mentioned refers to Battell v. Torrey 65 N. Y., 294. It will be perceived that the omission complained of in that case was the failure by the special guardian to report under oath an agreement for the sale, leasing, or other disposition of the property of the infant. Such a report seems from the facts of that case, to have been wholly omitted, and consequently there could be no confirmation by the court—that was held to be a material defect in the proceedings, and fatal to their validity. By referring to section 177 of the statute in regard to the sale of real estate of infants, before referred to, we see that such a report under oath of an agreement by the special guardian is required. The language referring to the agreement, is “ The same shall be reported to the court on the oath of the guardian making the same.” In the case at bar, the evidence shows that such a report was made, under oath, by the special guardian in substantial compliance with such statute, which was confirmed by the court. The provisions of the statute under which those proceeding were instituted in 1863, seem to have been substantially observed, sufficiently so to preserve the jurisdiction and to render them valid and effectual to convey the title, in support of so clear an equity in favor of the purchaser. We think this case is clearly distinguishable from this case. In the Matter of Valentine (a lunatic) 72 N. Y., 185; Battel v. Torrey, 65 N. Y., 294), above referred to. We have not overlooked the case of Ellwood v. Northrup (106 N. Y., 173), recently reported. From an examination of that case, we are convinced that the case at bar is as clearly distinguishable therefrom, as it is in regard to the other cases referred to, and for the same reasons above assigned. It appears by reference to that case that the defects in the proceedings by which the sale was made, were the result of a disregard of the provisions of the' statute which are mandatory. The opinion at page 184 contains the following: “No evidence whatever was offered of any compliance with the provision of the statute above set forth; except the presentation to the Jefferson county court of a petition for an order of sale, and the appointment of a special guardian to make such sale; the appointment of such guardian, and the execution by him of a bond and the approval thereof by the county judge.”

‘ ‘ In that case there was a disregard of the statute in reference to several provisions thereof, which are mandatory, ' and which were at least substantially observed in the case at bar. The case of Cole v. Gourlay (79 N. Y., 528), before

referréd to, specifically disposes of several of the objections taken to the proceeding in question, and the principle then annunciated, which received the approval of the entire court, seems decisive in this case. When the sale occurred in 1864, the plaintiff was upwards of seventeen years of age, and reached majority in 1868, and after the lapse of nearly nineteen years since she became twenty-one years of age, brings this action against a bona fide purchaser of the premises, without tendering or offering to return the consideration money which she received therefor. Under such a state of facts we are satisfied that she should be held to have ratified and confirmed the sale, which was made upon her petition and by her procurement, and the fruits of which she has received and enjoyed. Crummey v. Mills, 40 Hun, 370; Medbury v. Watrous, 7 Hill, 110, Henry v. Root, 33 N. Y., 526; Lynde v. Budd, 2 Paige Chy., 191; Parsons on Contracts, vol. 1, 281, The case of Green v. Green, (69 N. Y., 553), was decided upon a state of facts which were peculiar. The controversy was between father and son, and the delay in bringing the action of only about three years after the son became of age. And such shortness and the delay in bringing the action was referred to in the opinion as a circumstance bearing upon the question of ratification- This case is referred to in Crummey v. Mills (supra), as based upon the peculiar facts of that case, and exceptional. We cannot regard this case, when applied .to the facts of the case at bar, as adverse to the doctrine of ratification above stated.

We discover no sufficient ground for a reversal of the judgment, and the same must be affirmed, with costs.

Learned, P. J., and Landon, J., concur.  