4 Barb. 139 | N.Y. Sup. Ct. | 1848
The bill of exceptions, for all the purposes of this suit, shows that John Adam Schneider, who is the common source of title of both parties, died in 1818, seised of the premises in question. The plaintiffs are his heirs
There are several objections made to the proceedings before the surrogate to sell the real estate of the decedent, which will be considered in their order. 1. The plaintiffs’ counsel contends that it was not proved to the surrogate that John A. Schneider died intestate, and that therefore letters of administration on his estate were granted without authority of law. Without considering the question whether enough is recited in the letters of administration, which are set forth at full length in the bill of exceptions, to show that the surrogate had jurisdiction in the case to grant them, and without deciding whether the facts necessary to confer jurisdiction may be now proved by their recital in the letters, I think a sufficient answer is that they appear to have been read in evidence without objection. If the plaintiffs had raised this point on the trial, the objection was susceptible of being removed by parol evidence. The silence of the plaintiffs is to be deemed a waiver of the objection, provided it could have been made. 2. It is contended that no inventory was ever returned to, or filed with, the surrogate before the order of sale was made. I think it is a fair inference from the bill of exceptions, that no inventory was filed. There is no proof whatever that any was filed, and there is some proof, and indeed quite satisfactory proof, that when the application for the sale was made and the proceedings with that view instituted, the inventory was not filed. But that, in my judgment, was not essential in order to give the surrogate jurisdiction to order the sale. The act (1 R. L. 450, § 23) provides that when the executor or administrator, Sec. shall discover or suspect that
3. The next objection is that no petition or account of property and debts were exhibited to the surrogate, as required by the statute. If this point is true in fact, it is fatal to the defendants. Until such account is presented to the surrogate, he has no power to take the first step towards the sale of the real estate. It is the foundation of all the subsequent proceedings. (§ 23. Bloom v. Burdick, 1 Hill, 135. Ford v. Wadsworth, 15 Wend. 450.) The only question therefore is, whether the account was in fact presented. The order to show cause, &c. of the 4th of August, 1824, recites the fact that a regular petition and account were presented. Adam Partenheimer, the administrator, was a witness on the trial, and testified, among other things, that he was sworn by the surrogate; that he told the surrogate of all the property that .Schneider had that he had any knowledge of,- that the surrogate took down in writing what he said ; that he gave the surrogate a statement of Schneider’s debts ; that he had a statement of his debts and showed it to the surrogate ; that he stated to the surrogate that Schneider’s personal property was not enough to pay his debts; that he gave the surrogate a statement of all the affairs of Schneider’s estate; that he stated to him that the estate was insolvent, and that its debts could not be paid without selling the real estate in Cayuga county. William H. Seward, another witness
4. The remaining objection to the proceedings before the surrogate is, that there were no guardians appointed for the plaintiffs, who were all infants; that they therefore never had their day in court, and that their rights could not be affected by any order or decree of the surrogate. The judge at the circuit ruled this point in favor of the plaintiffs, and I think correctly. The same point appears to have been expressly decided in the case of Bloom v. Burdick, above referred to. The 31st section of the act under which the proceedings were had requires, in express and positive terms, that in all such cases where one or more of the devisees or heirs are infants, the surrogate shall appoint some discreet and substantial freeholder a guardian of
The reasoning of Justice Bronson in that case is entirely satisfactory to me, and is decisive of the present case.
New trial denied.