20 Wend. 241 | N.Y. Sup. Ct. | 1838
After disposing of some minor questions, the judge proceeded as follows :
Thus these verdicts are brought to depend exclusively on the form of the proceedings before the surrogate, and the deeds from the executor; If these were, on their face valid, as being a compliance with the statute, 1 R. L. of 1801, p. 223, 4, § 20 and 21, the title of all the defendants was perfect, under the finding of the jury upon the question of domicil. If not, the plaintiffs are entitled to recover, unless there be other impediments which can have no operation in disposing of these cases.
By § 20 of the statutes above referred to, the executor was bound to make a just and true account of the personal estate and debts, as far as he could discover the same, and deliver it} with a proper petition, to the surrogate, who might, on due inquiry, order a sale of real estate, if he should find the personal estate insufficient to pay the debts. It was mentioned in argument that the account, when presented, was not sworn to by the executor; but no such objection being made on the trial, it cannot be entertained here.
It is clear that we cannot, in this collateral proceeding, inquire whether, in fact, there were any debts due over and above the
The whole case is then narrowed down to two of the points made by the plaintiffs’ counsel: 1. Whether the account of debts and personal property filed with the surrogate were sufficient to give him jurisdiction, and 2. Whether the deed, in omitting to state his order at large, is therefore void.
The first objection was levelled particularly against the account of debts due from the estate. In all three of the causes, it was said, neither person nor amount, nor consideration are mentioned as to some of the debts, and in the action against Cay wood, it was added, what in fact is equally applicable to all of them, that some of the debts arose after the testator’s death. The statute 1 R. L. of 1801, 323, § 20, should doubtless be so construed as to facilitate the detection of fraud in simulating
2. In respect to the form of the deed; .the statute, 1 R. L. by Kent & Radcliff, 1801, p. 324, § 21, requires that the sale shall be made and conveyances for the same executed by the executors, &c., applying for the order ; “ and the conveyances for the same shall set forth such order at large; and shall be valid, &c., against the heirs and devisees of such testator or intestate, and all claiming by, from or under them.”
In strict prudence, even at common law, and independent of any statutory injunction, such a deed should recite the authority under which the executor acted; for, though such a recital would not, as against persons other than the grantor or those claiming under him, be evidence of the order, it would, even in respect to strangers, be proof to connect the grantor with the order, as a cotemp oraneous declaration that the agent was acting as such, and not in his own right. The omission of such a re
But the matter has not been thus regarded by the legislature. It is true, as was said on the argument, that there is no express adjudication in this court, declaring the want of such a recital fatal to the conveyance. The farthest we have gone is in Rea v. M’Eachron, 13 Wendell, 465, which avoids it for actual want of the surrogate’s order of confirmation. A late statute has, however, gone farther, 2 R. S. 2d ed. 48, § 61 to 65 inclusive. These sections provide that when the conveyance omits to set forth at large the order of the surrogate, either in case of a past or future sale, the chancellor shall make such order confirming the sale and conveyance as he shall deem equitable, on its appearance to him that the sale was made fairly and in good faith. The omission is put on the same footing in point of materiality, as if, on a sale under a previous statute, now repealed, some discreet person had not concurred in the conveyance with the
Upon the ground of the defective recital alone, new trials are granted in all three of the causes.