
    Russell Dixon, Plaintiff, v. James J. Cozine, Defendant.
    
    (Supreme Court, Kings Special Term for Trials,
    December, 1908.)
    Vendor and purchaser — Title and incumbrances — Title by devise or will — Title of infant party through action to determine validity of will refused probate.
    Wills: Probate, establishment and annulment—Actions to annul or to determine validity of will—Action to determine validity of will — Not maintainable where Surrogate’s Court has refused probate: Validity, operation and legal effect — In general — Necessity of probate to support title founded on will.
    A surrogate’s refusal to admit to probate a will relating to real property is not conclusive upon the devisee, and he may assert Ms rights in a common law action, or by petition, or wherever or whenever the title to said real property comes in question; the title of the devisee being derivative from the will and not from a decree admitting it to probate.
    The provisions of the Code of Civil Procedure (§§ 1861-1867, 2653a), relating to the establishment or impeachment of a will or the determination of its validity by an action in the Supreme Court, do not authorize an action to establish the validity of a will where the Surrogate’s Court has refused to admit it to probate.
    Where a will devising certain real estate for life with remainder over to an infant was refused probate, and, after the appointment of a guardian ad litem for the purpose of bringing an action in the Supreme Court to establish the will, an order was granted permitting the guardian to compromise the infant’s claim for a certain amount which was received and the action discontinued, the jurisdiction of the court to bind the infant through a settlement so made by the guardian was so doubtful that the purchaser under a contract for the conveyance of said real estate should not be compelled to complete his purchase but is entitled to recover a deposit made upon the execution of the contract.
    Action for specific performance.
    Malcolm Ross Matheson, for plaintiff.
    Charles C. Suffren, for defendant.
    
      
      
         Received too late for insertion in proper place. Affirmed by Appellate Division on this opinion.
    
   Carr, J.

The plaintiff sues to recover a deposit of $500 paid on the execution of a contract for the conveyance of lands and he claims that the vendor’s title is unmarketable. The defendant claims that his title is marketable and asks for specific performance of the contract. The controversy arises under the following circumstances: the title to the real property in question was in one Matilda Hoag at the time of her death in September, 1905; she left a last will and testament whereby she devised the land in question to her son Oscar Hoag, with remainder over in fee to her grandniece Harriet Eay Dayton, an infant; the will was offered for probate in Kings county, and the surrogate by a decree entered on March, 1906, refused probate thereof; on August 8, 1907, an order was entered in the court appointing a guardian ad litem, for said infant for the purpose of maintaining an action to establish said instrument as the last will and testament of the decedent, and on August 19, 1907, a further order was entered permitting the guardian ad litem, to compromise the infant’s claim for the sum of $1,500, which was received by the guardian and the action brought by him was discontinued on August twenty-third of the same year. The plaintiff in this action claims that the rights of the infant devisee were not cut off by the settlement authorized by the court and that, therefore, the defendant’s title is unmarketable as the infant may hereafter maintain appropriate proceedings to assert her title to the land in question. It is settled law that the refusal -by a Surrogate’s Court to admit to probate a will of real property is not conclusive upon the devisee, and that he may assert his rights in a common-law action, or by partition or wherever or whenever the title to the real property comes in question. Corley v. McElmeel, 149 N. Y. 228; Harris v. Harris, 26 id. 433. The devisee derives title to real property under the will itself and not from a probate decree. The Code of Civil Procedure provides several remedies for the establishment of a will in sections 1861-1867 and 2653a; but none of these provisions may apply to a situation such as we have before us here. Section 1861 relates to the establishment of a will of real property executed according to our law, but when the original will can not be produced, because it is in another State or country and cannot be obtained or has been lost or destroyed before it was duly proved. Section 1867 provides for the determination of the validity of a will of real property, situate in this State, but does not apply to a case where the question in controversy has been determined in a Surrogate’s Court. It has been held that this section does not apply to a case where the validity of the instrument itself is sought to be established and applies only to the validity of some provision in a valid will. Anderson v. Anderson, 112 N. Y. 104. Section 2653a applies by its terms only where the will has been admitted to probate. Unless, therefore, this court had inherent jurisdiction in equity to take cognizance of such an action as was brought by the infant, it is difficult to see what jurisdiction it had over it and how it could make any valid order in it. Perhaps the fact that the heir at law was in possession, and lawfully so for his life, at least, if the will was valid, would afford jurisdiction in equity as the devisee would be unable to maintain ejectment during the life estate. Brady v. McCosker, 1 N. Y. 214. Assuming such jurisdiction in this court to entertain the action in question, the question is urged whether it had any power to bind the infant plaintiff through the settlement made by the guardian under its order. It seems to me that this question is to be determined by ascertaining whether the interest of the infant plaintiff under the will is to be considered as an interest in real property or as a mere chose in action, personal in nature. If the settlement'in question amounts in fact to a conveyance or a release of a legal title to lands, the question of validity is difficult.

While it has been held that courts of equity have inherent power to direct a sale of an equitable interest in real property belonging to an infant (Anderson v. Mather, 44 N. Y. 249) ; it has also been held that there is no inherent power to authorize a conveyance or mortgage of an infant’s legal estate and the power so to do can- come only from statute. Losey v. Stanley, 147 N. Y. 560; Ellwood v. Northrup, 106 id. 172. The order entered by this court did not in terms authorize the execution of any conveyance or release by the infant through the guardian, hut merely authorized the guardian to accept the money offered in compromise and settlement of the infant’s interest, and, on said payment having been made, a further order discontinued the action. If the infant is bound in any way by this compromise, it would be necessarily and exclusively by way of estoppel and not by way of grant or release. As the court would not have authorized a grant binding the infant, I fail to see how it could have indirectly reached a result similar in effect, through the indirect means of an estoppel. Of course, if proceedings had been had under the Code for the sale of the infant’s interest in the real property in question, there would be no room for the present controversy. Ho authority is cited to me, nor can I find any, where this precise question has been considered and decided. To me it seems to be so doubtful that a purchaser should not be compelled to take title where it is involved. Judgment is directed for the plaintiff with costs.

Judgment for plaintiff, with costs.  