
    Sarah L. Smith, Appellant, v. Sarah C. Blood and Others, Defendants, Impleaded with William H. Marshall and Others, Respondents.
    
      Sale, for debts, of a decedent’s real property purchased with pension money—the proceedings therefor cannot be attacked collaterally in the absence of fraud—not void because a guardian ad litem is not appointed — the exemption is personal to, and does not survive, the pensioner — the duty, in any event, rests on the widow and, next of kin to establish the fact in such proceedings.
    
    In the absence of proof of fraud or collusion, affecting proceedings in the Surrogate’s Court, which resulted in the granting of letters of administration on a .decedent’s estate, and in the sale of his real estate for the payment of his debts, such proceedings cannot be attacked collaterally.
    An omission to appoint a guardian ad litem for an infant party to an action or proceeding, process in which was duly served, does not render the. judgment or decree in the action or proceeding void, but simply voidable.
    Property purchased with pension moneys by a United States pensioner, who died intestate leaving a widow and several minor children, is subject to be sold for the payment of his debts, pursuant to title 5 of chapter 18 of the Code of Civil Procedure (§ 2749 et seq.), as the exemption of such property from sale under execution conferred by section 1393 of the Code of Civil Procedure is personal to the pensioner and does not extend beyond his lifetime or to his family.
    Even if such property cannot be lawfully sold in such a proceeding, it is incumbent upon the widow and heirs at law of the pensioner to establish in the proceeding the fact that the property was purchased with pension moneys, and if they neglect to do so and the proceeding results in the sale of the property to an innocent purchaser, the widow and heirs at law of the pensioner cannot, in a collateral action brought fourteen years after the sale, successfully attack the title of an innocent grante.e of such purchaser.
    
    Appeal by the plaintiff, Sarah L. Smith, from a judgment of the Supreme Court in favor of the defendants William II. Marshall and others, entered in the office of the clerk of the county of Montgomery on the 30th day of January, 1905, upon the verdict of a jury rendered by direction of the court after a trial at the Montgomery Trial Term, and also from an order entered hi said clerk’s office on the 24th day of January, 1905, denying the plaintiff’s motion for a new trial made upon the minutes.
    William II. Blood received a pension granted to him by the United States for military services. In 1888 lie purchased a house and lot in Amsterdam, and paid therefor the sum of $1,200. It is claimed that the payment was made from the money received by him from said pension.
    On the 1st day of March, 1889, he died intestate, the owner in fee of said real property, leaving a widow and eight children, six of whom were minor's. The property was then incumbered by a mortgage of $700. An administrator of his goods, chattels and credits was thereafter appointed, but no personal property was found. On the petition of such administrator, said property was sold for the payment of debts. The sale was at public auction, and the property was purchased by the defendant John M.-Marshall for $1,075, from which was deducted the amount of said mortgage, and he paid the difference in cash.
    - Said John M. Marshall did not have notice or knowledge that said property had been purchased with pension money, or that it was claimed that there were any errors, defects or omissions in the proceedings to sell said property,. Said widow and children remained in possession of said property until the 1st day of November, 1890, when said Marshall stated to them that he had purchased the house and that they must pay rent or move out, and they moved out, and said Marshall went into possession of the property and remained in • possession thereof until February 22,1897. He then sold said property to the defendant William H. Marshall, who purchased the same without notice or knowledge that it had been purchased by said Blood with pension money and without notice or knowledge that it was claimed that there were any errors, defects or omissions in the proceedings for the sale thereof. He went into possession of said property and remains in possession thereof.
    The plaintiff, who was one of the children of said William H, Blood, was at the time of his death about thirteen years of age. In August, 1904, more than fifteen years after her father’s death, and nearly fourteen years after the sale of said property at auction under said proceeding, she commenced this, action to partition said prop.' erty, making her mother and her brothers and sisters and also the administrator of her father’s estate and the said Marshalls and a subsequent bona fide mortgagee under the defendant John-M. Marshall parties defendant, asking that they be barred from all interest in said property, and for a division of the proceeds of the sale of said property among the widow and heirs at law of her father.
    It is conceded that the proceedings for the sale of said property were regular and in every respect in accordance with the statutes in relation thereto, if the court obtained jurisdiction of the subject-matter and of the persons of said widow and heirs at law.
    
      J. W. Eighmy, for the appellant.
    
      Charles S. Nisbet, for the respondents.
    
      
      See Matter of Stafford (105 App. Div. 46).— [Rep.
    
   Chase, J.:

Over one year after the death of William H. Blood, the defendant James E. Marshall, being a creditor of the deceased, presented to the Surrogate’s Court a petition in the form prescribed by statute, asking that letters of administration .be granted to him, and that a citation issue to all persons having a right to administration prior or equal to that of the petitioner.

A petition was issued accordingly and duly served upon the widow and children of said deceased. On the. return day of said citation there was filed in the Surrogate’s Court by a competent and responsible person a written consent to appear as special guardian of said infants, and a decree was entered reciting the filing of the petition, the issuing of the citation and that “ On reading and filing proof of service thereof, A. B. Flansburg appearing for the petitioner, J. W. Eighmy appearing for Sarah C. Blood, Ed. J. Perkins appearing as special guardian for Sarah, Annie, Harry, Nellie and William, infants, and on reading and filing the bond executed by said petitioner.” The decree ordered that letters of administration be granted to said James E. Marshall, and letters were on that day issued accordingly. It does not appear upon whose application the special guardian was appointed, or that a formal order of appointment was filed in the Surrogate’s Court.

No personal property being found, the. administrator thereafter filed in the Surrogate’s Court a petition praying for a decree directing the disposition by sale, mortgage or lease of the real property of the decedent or so much thereof as is necessary for the payment of his delpts. Such petition contained all the facts required to be stated therein by section 2752 of the Code of Civil Procedure as said section ■ then existed. (See Laws of 1880, chap. 178.) A citation was thereupon issued which was directed to and duly served upon the widow and heirs at law of the intestate. Hone of the heirs at law who were under twenty-one years of age had a general guardian, and on the return day of said citation there was filed in the Surrogate’s Court by a competent and responsible person a written consent to appear as special guardian for said infants. In the decree entered thereafter it was recited: “Said citation having been returned * * * with proof of due service thereof on each of the persons therein named and that said surrogate, having hy order duly made and entered herein on the 2nd day of August, 1890., appointed Ií. Y. Bórst, a counselor at law,- special guardian for the minors Hellie Blood, Sarah Blood, Harry Blood,. Annie Blood,- ¥m. Blood, LeOnia Blood, for the protection of their interests herein. And the said James E. Marshall having appeared in-person and by A. B. Flansburg, his attorney and counsel, and Sarah C. Blood, widow of said decedent, having' also appeared by J. W. Eiglnny, her attorney and counsel, and the said guardian having appeared in person, and the proper proceeding in due form of law haying been thereupon had, and no one appearing in opposition thereto, and the surrogate having upon, the return of the citation as aforesaid proceeded to hear the allegations and proof of the parties,” and said decree further provided, “ it having been established to the satisfaction of said surrogate, 1st, that said petitioner has fully complied with all the requisite provisions of the statute concerning the disposition of decedent’s real property for the payment of debts or funeral expenses and that the proceedings herein have been in conformity to title 5 of chapt.er 18 of the Code of Civil Procedure.” It was decreed that said real property be sold for the payment of debts.

It does not appear upon whose application the special guardian was appointed and, although it is recited that an order was. made and filed, no such' order appears in the record. It is shown that all the parties interested in said real property were duly cited by the affidavits of service and presumptively by the recital in the decree-

It is provided by section 2473 of the Code of Civil Procedure as follows: “ Where the jurisdiction of a surrogate’s court to make, in a case specified in the last section, a decree or other determination, is drawn in question collaterally and the necessary parties were duly cited or appeared, the jurisdiction is presumptively, and, in the absence of fraud or collusion, conclusively, established by an allegation of the jurisdictional facts contained in a written petition or answer, duly verified, used in the surrogate’s court. The fact that the parties were duly cited is presumptively proved by a recital to that effect-in the decree.”

It is, and was when the intestate died, also provided by section 2474 of the Code of Civil Procedure: “The surrogate’s court obtains jurisdiction in every case by the existence of the jurisdictional facts prescribed by statute, and by the citation or appearance of the necessary parties. An objection to a decree or other determination founded upon an omission therein or in the papers upon which it was founded, of the recital or proof of any fact necessary to jurisdiction which actually existed or the failure to take any intermediate proceeding, required by law to be taken, is available only upon appeal. But, for the better protection of any party or other person 'interested, the surrogate’s court may, in its discretion allow such a defect to be supplied by amendment.”

It is also provided by section 2763 of the Code of Oivil Procedure, as amended by chapter 750 of the Laws of 1904, as follows: “ The title of a purchaser in good faith at a sale pursuant to a decree made as prescribed in this title is not, nor is the validity of a mortgage or lease made as prescribed in this title, in any way affected where a petition was presented and the proper persons were duly cited and a decree authorizing a mortgage, lease or sale was made as prescribed in this title, bv any omission, error, defect, or irregularity occurring between the return of the citation and the making of the decree, except so far as the same would affect the title of a purchaser at a sale made pursuant to the directions contained in a judgment rendered by the Supreme Court.” (See Code Civ. Proc. [Laws of 1880, chap. 178] § 2784, prior to its repeal by Laws of 1904, chap. 750.)

There is sufficient evidence before us to show that the Surrogate’s Court had jurisdiction of the persons of the widow and heirs at law of the intestate for the purpose of appointing an administrator, and also for the purpose of making the decree directing the sale of said real property and to confirm the sale. No. fraud or collusion has been shown in either proceeding and the same cannot be attacked collaterally. (Mott v. Fort Edward Water Works Co., 79 App. Div. 179; Vain Gaasbeek v. Staples, 85 id. 271; Bolton v. Schriever, 135 N. Y. 65; Roderigas v. East River Sav. Institution, 63 id. 460; O’Connor v. Huggins, 113 id. 511; Taylor v. Syme, 17 App. Div. 517; Hoes v. N. Y. N. H. & H. R. R. Co., 173 N. Y. 435; Sisco v. Martin, 61 App. Div. 502.)

An omission to appoint a guardian ad. litem in an action or proceeding where process had been duly served does not make a judgment or decree void, but voidable only. . (McMurray v. McMurray, 66 N. Y. 175; Fox v. Fee, 24 App, Div. 314.)

Appellant’s counsel insists that he was not allowed to show in the trial court that the proceedings in the Surrogate’s Court were fraudulent and void. He was counsel for the widow in the proceeding for the appointment of an administrator of the intestate, and also in the proceeding for the sale of his real estate for the payment of his debts, and made no objections to the. proceedings or the decree that was granted in each proceeding.

On the trial of this action lie made a general offer to show that the proceedings in Surrogate’s Court were fraudulent and void, to which general offer the court said : “ The offer I do not entertain.” He did not offer evidence in any way relating thereto. If he had done so it is to be presumed that the court would have received it. The widow was not at the time of the sale interested in the fee of the real property, and it is unnecessary in this case to pass upon any question relating to her dower or other rights in the property. The appellant’s counsel, following the offer to show that the proceedings in the. Surrogate’s Court were, fraudulent and void, made a further offer as follows: I offer to prove by each one of the heirs of Win. H. Blood that they had no papers in these proceedings to sell the real estate, served upon them. No notice as required by section 2531 of the Code of Civil Procedure, and that they never personally appeared in court.” To which the court said: “That is a very broad offer; you might have something you could prove.” The appellant’s counsel replied:' “ They will claim that the infants have waived.” The respondents’ counsel then said “ We do not claim that any of the heirs of Blood have waived anything.” Ho further offer was made by the appellant’s counsel, and no evidence was offered by appellant relating to her alleged claim. There is nothing before this court requiring our consideration of the questions about which the appellant’s offers were made.

It is further claimed by the appellant that the Surrogate’s Court never had jurisdiction of the subject-matter of the proceedings for the sale of said real property, for the reason that the real property was purchased by the intestate with pension money, and that it was exempt from sale for the payment of intestate’s debts by section 1393 of the Code' of Civil Procedure, and that under section 2749 of the Code of Civil Procedure no authority was given, to the Surrogate’s Court to entertain a proceeding for the sale of such real property for the payment of intestate’s debts. (See Laws of 1876 chap. 448, and Laws of 1880, chap. 178.)

The real property of which a decedent died seized is subject to be disposed of for the payment of his debts and funeral expenses as prescribed in title 5 of chapter 18 of the Code of Civil Procedure, “ except where it is devised expressly charged with the payment of debts or funeral expenses or is exempted from, levy and sale by virtue of an execution as prescribed in title second of chapter thirteen of this act.” (Code Civ. Proc. § 2749.)

The only express exemptions of real property from levy and sale by virtue of an execution prescribed by'title 2 of chapter 13 of the Code of Civil Procedure are: First. A seat or pew occupied by the judgment debtor or the family in a place,of public worship.. Such interest, although-in perpetuity, is a limited and usufructory one, and is enumerated in the statute as personal property. (Code Civ. Proc. § 1390.) Second. Lands set apart as a family or private burying ground when designated as prescribed by law to exempt the same. (Code Civ. Proc. §§ 1395, 1396.) Third. A lot of land, with one or more buildings thereon, not exceeding in value $1,000, and designated as prescribed by law as an exempt homestead. (Code Civ. Proc. §§ 1397-1399.)

By section 1393 of the Code of Civil Procedure there is no express exemption óf real property from levy and-sale by virtue Of an execution. That section of said Code in terms exempts a pension granted' to a person in the military or naval service of the United States or of a State, and certain equipments. The Federal government, by which the decedent’s pension was granted, protects the pension money until it reaches the pensioner, or his family in case •of Ins'death. (See XJ. S. B. S. §4147.) Its protecting care extends mo further, and such money becomes general assets in the hand’s of .flie person or persons receiving it.

Prior to .the decision of the case of Yates County National Bank v. Carpenter (119 N. Y. 550) it was quite uniformly held in this State that the exemptions from levy and sale by virtue' of an execution, as stated in section 1393 of the Oode Of Civil Procedure, did hot extend to property, , real or personal, purchased by the peiisioner with the pension money. By the decision in Yates County National Bank v. Carpenter (supra) it was held that where pension money can be directly traced to the purchase of property necessary Or convenient for the support and maintenance of. the pensioner and his family such property is exempt. Apart from exemptions, property of which a person dies the owner.is subject to the payment of his debts. Exemptions of property from levy and sale by virtue, of an execution do not run with the property exempted, and are not incidents thereof, but are personal favors'to the person exempted. The statutes provide what property shall be deemed assets - Of a decedent to be inventoried, and what property shall be set apart to a widow and the infant children of a deceased' person, and real property, unless devised, descends to tlie heirs at law Of the deceased.

That it was not the intention of the Legislature to extend the exemptions of property purchased by pension money beyond the life of the pensioner is reasonably certain from the fact that it is not-so stated in the statuté and for the further reason that no provisión is made for protecting a bona fide purchaser of the property from a stale claim of such exemptions as in the case now under consideration. Express provision is made for a record in the office tif the clerk or register of the county in the proper book for recording deeds of lands set apart as a family or private 'bury-? ing ground and for a record of exempt homesteads in a book kept for that purpose and styled the “ Homestead Exemption Book.” By section 1400 of the Code of Civil Procedure it is also provided when the exemptions of a homestead shall continue after the owner’s death, and the extent thereof. If we should hold that real property purchased with pension money remains exempt for the benefit of the widow and infant children after the death of the pensioner, what limit shall be placed upon such exemptions ? Would the exemption cease at the death of the widow and on the children arriving at the age of twenty-one years ? If it is the intention of the Legislature to extend exemptions of real property purchased with pension, money beyond the death of the pensioner, it should be so expressly stated, and provision should be made for giving notice thereof.

We are of the opinion that the real property of the decedent in this case was not, at the time of the filing of the petition, exempt from levy and sale by virtue of an execution, and that the Surro-gate’s Court had jurisdiction of the subject-matter of the proceeding. (Matter of Liddle, 35 Misc. Rep. 173; Beecher v. Barber, 6 Dem. 129.)

We are also of the opinion that the heirs at law of the decedent should not now be allowed to assert the 'exemption even if said section 1393 is construed to include an exemption extending beyond the death of the pensioner. The exemption in any event is not specific and absolute, but dependent upon a determination that the real property ivas purchased with pension money. It is necessary to determine such fact in the proceeding. The jurisdiction of the Surrogate’s Court is dependent upon many facts such, as the existence of unpaid debts against the decedent, which must be. determined by the court. (Farrington v. King, 1 Bradf. 182.) It is important for the protection of innocent purchasers and the security of titles to real property that, if exemptions nlay extend beyond the life of a pensioner, the fact upon which such exemption depends be determined at the earliest possible moment and in the first proceeding relating thereto when such exemption can be asserted.

It has been determined by a court having jurisdiction of the persons of the heirs at law of the decedent that the real property in question was subject to sale by virtue of title 5 of chapter 18 of the Code of Civil Procedure. The widow and heirs at law had an opportunity to assert the claimed exemption and failed to do so., and. an innocent purchaser at a public sale, pursuant to a decree of the court, has accepted and paid for a deed thereof, and the parties to the proceeding should not now in a collateral action be allowed to deny his title.

The judgment and order appealed from should be affirmed, with costs.-

Judgment and order unanimously affirmed, with costs. 
      
       Code Civ. Proc. chap. 18, tit. 5.— [Rep.
     
      
       See Laws of 1880, chap. 178;. Laws of 1894, chap. 735.— [Rep..
     