142 N.Y. 545 | NY | 1894
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *547 The General Term has reversed the judgment entered upon the report of the referee in favor of the plaintiff in this case. It does not appear that the reversal was upon the facts, and we must, therefore, assume that the decision was upon the law, applied to the facts settled by the report of the referee. The judgment was based upon facts as to which there was really no controversy. In December, 1866, Holloway Long, the plaintiff's grandfather, died, leaving a will which was duly admitted to probate. He devised to the plaintiff and his sister, children of his deceased son, as tenants in common, the undivided one-half part of a farm containing 328 acres, of which he died seized. In the month of February, 1868, the plaintiff and his sister, being infants, by their general guardian, presented a petition to the Supreme Court for authority to sell this real estate. An order was entered in the proceeding appointing the general guardian special guardian for the purpose of selling the land, and their interest in it, upon his executing a bond to each of the infants in the penalty of $5,000, conditioned for the faithful performance by the special guardian of his trust, and for compliance with the orders of the court in respect to the proceeds of the sale. On the 22d of February, 1868, the special guardian with the defendant and another person, now deceased, executed the bond in the form and manner prescribed by the order and the rules of the court. It was approved by the county judge and filed, and thereupon the guardian entered upon the performance *550 of his duties as such. Subsequently the guardian, by direction of the court, conveyed the infants' interest in the land to a purchaser. The following are the words of the condition in the bond: "The condition of this obligation is such, that if the above-bounden Duncan MacIntyre shall faithfully perform the trust reposed in him as the guardian of the above-named infant for the purpose of selling and disposing of certain real estate belonging to said infant, and shall pay over, invest and account for all moneys, and securities received by him as such guardian as aforesaid, according to the order of any court having authority to give directions in the premises, and shall observe and obey all orders and directions of any such court in relation to the said trust, then this obligation to be void, otherwise to remain in full force and virtue."
The purchaser paid to the special guardian as the consideration for the conveyance to him of the interest of both children in the real estate the sum of $9,150. The interest of the infants was subject to a legacy of $4,000 bequeathed by the testator to his widow. The guardian paid this from the proceeds of the sale, and no question is made as to the validity or propriety of this payment. The defendant was a son of the testator, and was named in the will as sole executor, but he renounced the office and subsequently administrators with the will annexed were appointed. He then filed with them, as such, a claim against his father's estate, which was disputed and referred as a disputed claim under the statute. The referee reported in favor of the claim and judgment was entered upon the report in favor of the claimant for $10,245 on the 14th of December, 1867. There is some dispute as to the regularity of this judgment, it being claimed on the part of the plaintiff that it was entered without confirmation of the report by the court or any other direction save the report of the referee appointed by the surrogate. We will assume, however, that the judgment was not void and that the defects or irregularities in the record, if any, are not now material. The special guardian paid the balance of the purchase money received by him for the interest of the infants *551
in the real estate devised to them by the will to the defendant upon this judgment, without any order or direction of the court, and this was found by the learned referee to be a misappropriation by the guardian of the funds, for which his sureties are responsible. The guardian never rendered any account to the court of his proceedings, and was never regularly discharged from the obligations of his trust. He died intestate in 1871 and his estate was administered and distributed in the year 1875. The other surety died in the year 1881, intestate, and his estate has also been administered and distributed. Prior to the commencement of this action the court, upon the plaintiff's petition, directed that the bond be prosecuted. The referee directed a judgment for the plaintiff for the amount of the penalty specified in the bond. The opinion of the learned General Term indicates that the reversal proceeded upon the theory that though the payment of the fund to the defendant was irregular and in violation of the rules of the court, yet the infants had the benefit of the payment, since it went to extinguish a claim or lien against their property, and hence the plaintiff was not equitably entitled to recover. It is plain from the discussion that it was assumed the court could have ordered the guardian to pay the money in his hands upon the judgment and that such an order would have been made had he applied for it, and that as there was nothing wanting to complete the authority to dispose of the fund in that way except such an order, equity would now regard as done that which would have been done had an application for that purpose been made. The conclusion of the learned court below depends upon two propositions in neither of which can we concur: (1) That the court would or could have authorized the guardian to pay the money on the judgment. (2) That the infants received the benefit of such payment. The court had no power to direct the fund in the guardian's hands to be applied to a purpose for which it could not direct the land to be sold in the first instance. The judgment was not a lien upon the land. It was not a judgment against the testator in his lifetime nor against his devisees, but against the administrators *552
of his estate. It could have been enforced only in the regular course of administration. The personal property was the primary fund for its payment, and the real estate of which the testator died seized, in the hands of his heirs or devisees, was not liable to be sold for the payment of the debt until the personal estate had been exhausted, and not then without complying with the statutory proceedings for that purpose in the Surrogate's Court. Aside from the statute there was no general power in the court to direct the lands of which the testator died seized, or the proceeds in the hands of the guardian, to be applied to the payment of debts. (Hogan v. Kavanaugh,
The judgment of the General Term should be reversed and that entered upon the report of the referee affirmed, with costs.
All concur.
Judgment accordingly.