Lead Opinion
This action is instituted by the plaintiff to recover possession of the undivided one-half of lot Ho. 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 possession of the premises, claiming title thereto under her deed from Spath. When the defendant 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 Hew 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. Secondly. 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 21 years each; then I will the said real estate to be equally divided between my two children, their heirs and assigns. Thirdly. 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 h Teunto 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 Hew
In the year 1864 the plaintiff, being then nearly 18 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 18 years of age. And the money, by the terms of the mortgage, was made payable in live years from the date thereof, which would extend to a period when she would become 21 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 Henrietta Aldrich, the plaintiff, in which she stated, among other things, that she was 17 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 bis 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. In the Matter of Henrietta Aldrich, Infant, for the Sale of Certain Real Estate. 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
By the clause in the will, “ if they should be of the age of twenty-one years;
One is that it does not appear that the application was made by the next friend or guardian of the infant. Ho 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 not have been done. The petition states that the plaintiff was of the age of 17 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 re Whitlock, 19 How. Pr. 380; O'Reilly v. King, 28 How. Pr. 409. In the case last cited Judge Monell 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 discretion," disregard. ” In Cole v. Gourlay, 79 N. Y. 528, Judge Miller, at page 535, says: “A mere departure from a rule of the court does not impair the validity of the proceedings. ” The learned judge refers in this case to O'Reilly v. King, supra. It is further objected that the affidavit of disinterested persons was not produced. Ho such objection was made on the trial. It does appear that the affidavit of Alfred B. Hash 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 petitioner, 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. Ho 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, (2 Edm. St. at Large, 174, 203,) 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 Re McIlvaine, 15 Abb. Pr. 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 re Valentine, 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, (2 Edm. St. at Large, p. 54, § 2,) which is as follows: “On the presentation of such petition it shall
Landon, J., concurring.
Concurrence Opinion
(concurring.) By the marriage, in 1856, of Martha F. Fonda, widow of John W. Fonda, deceased, and mother of plaintiff, the plaintiff and her brother, Philip W. Fonda, became vested in fee, as tenants in common, share and share alike, of the premises in question, either as devisees, or as heirs of their father, John W. Fonda. The clause, “to remain under the control of my hereinafter named executor, ” created no valid trust.. It may perhaps have had the effect of making Gardner guardian of the children during minority. But it gave him no estate. On the 1st of September, 1863, Philip W. Fonda, then of age, and Martha F. Holmes, formerly the widow of John W. Fonda, the latter describing herself as trustee of the plaintiff, conveyed the whole premises to one Spath, in consideration of $900. This gave Spath the undivided half which belonged to Philip, and purported also to convey the plaintiff’s half. Under this conveyance Spath went into possession of the whole. He lived on the property, made repairs, and paid taxes till he sold it. The deed was duly recorded in October, 1863. Passing over for the present the proceedings of December, 1864, we find that, on the 20th of September, 1865, Spath and his wife conveyed the whole premises to defendant Margaretta Funk, and the deed was recorded on the 22d. The plaintiff came of age in May, 1868, and on the 5th of May, 1884, she commenced this action of ejectment to recover the undivided half of the premises against Margaretta Funk and her tenants. If the deed of 1863 to Spath conveyed plaintiff’s title, she cannot recover. If it did not, then, at least, it made Spath her co-tenant. Being such, she must show, against him or his grantees, actual ouster, (Sharp v. Ingraham, 4 Hill, 116,) and cannot recover on mere proof of title. As the position which she claims is that of co-tenant, she alleges that Margaretta entered about September 21, 1865, to the exclusion of plaintiff, and so continues. Code, § 1515. The defendant admits such possession, claiming to be the lawful owner. Now it appears, as above stated, that Margaretta took title from Spath, and that Spath had been, from September 14,1863, in possession “under claim of title, exclusive of any other right, bounding his claim upon a written instrument, as being a conveyance of the premises in question.” He did not go in simply as a co-tenant under a deed from Philip; but he went in as an absolute owner of the whole, under a deed which purported to be a conveyance of the whole, executed by one Philip, and also by one who claimed to be the plaintiff’s trustee. I do not see, therefore, why the ouster of plaintiff did not commence when Spath took possession under the deed to him. If he had acknowledged her right, he would have been (on her own theory) a co-tenant, lawfully in possession. But he denied that she had any right after he received the deed. Whatever ouster, then, was done to plaintiff by defendant Margaretta, the same had been previously done by Spath. If this be so, the plaintiff’s right of action commenced when Spath, under the deed to him, excluded her from the enjoyment of her undivided half. Code, § 369. This was in September, 1863. The action must be commenced, by the general rule, within 20 years. Id. §§ 365, 368, 369. She was within the age of 21 when her cause of action first accrued, and remained- under this disability till May, 1868. These four years and eight months, therefore, are not part of the time limited for commencing the action. But the time limited cannot be extended more than 10 years