94 N.Y.S. 667 | N.Y. App. Div. | 1905
Over one year after the death of William H. Blood, the defendant James E. Marshall, being a creditor of the deceased, presented to the Surrogate’s Court a petition in the form prescribed by statute, asking that letters of administration .be granted to him, and that a citation issue to all persons having a right to administration prior or equal to that of the petitioner.
A petition was issued accordingly and duly served upon the widow and children of said deceased. On the. return day of said citation there was filed in the Surrogate’s Court by a competent and responsible person a written consent to appear as special guardian of said infants, and a decree was entered reciting the filing of the petition, the issuing of the citation and that “ On reading and filing proof of service thereof, A. B. Flansburg appearing for the petitioner, J. W. Eighmy appearing for Sarah C. Blood, Ed. J. Perkins appearing as special guardian for Sarah, Annie, Harry, Nellie and William, infants, and on reading and filing the bond executed by said petitioner.” The decree ordered that letters of administration be granted to said James E. Marshall, and letters were on that day issued accordingly. It does not appear upon whose application the special guardian was appointed, or that a formal order of appointment was filed in the Surrogate’s Court.
No personal property being found, the. administrator thereafter filed in the Surrogate’s Court a petition praying for a decree directing the disposition by sale, mortgage or lease of the real property of the decedent or so much thereof as is necessary for the payment of his delpts. Such petition contained all the facts required to be stated therein by section 2752 of the Code of Civil Procedure as
It does not appear upon whose application the special guardian was appointed and, although it is recited that an order was. made and filed, no such' order appears in the record. It is shown that all the parties interested in said real property were duly cited by the affidavits of service and presumptively by the recital in the decree-
It is provided by section 2473 of the Code of Civil Procedure as follows: “ Where the jurisdiction of a surrogate’s court to make, in a case specified in the last section, a decree or other determination,
It is, and was when the intestate died, also provided by section 2474 of the Code of Civil Procedure: “The surrogate’s court obtains jurisdiction in every case by the existence of the jurisdictional facts prescribed by statute, and by the citation or appearance of the necessary parties. An objection to a decree or other determination founded upon an omission therein or in the papers upon which it was founded, of the recital or proof of any fact necessary to jurisdiction which actually existed or the failure to take any intermediate proceeding, required by law to be taken, is available only upon appeal. But, for the better protection of any party or other person 'interested, the surrogate’s court may, in its discretion allow such a defect to be supplied by amendment.”
It is also provided by section 2763 of the Code of Oivil Procedure, as amended by chapter 750 of the Laws of 1904, as follows: “ The title of a purchaser in good faith at a sale pursuant to a decree made as prescribed in this title
There is sufficient evidence before us to show that the Surrogate’s Court had jurisdiction of the persons of the widow and heirs at law
An omission to appoint a guardian ad. litem in an action or proceeding where process had been duly served does not make a judgment or decree void, but voidable only. . (McMurray v. McMurray, 66 N. Y. 175; Fox v. Fee, 24 App, Div. 314.)
Appellant’s counsel insists that he was not allowed to show in the trial court that the proceedings in the Surrogate’s Court were fraudulent and void. He was counsel for the widow in the proceeding for the appointment of an administrator of the intestate, and also in the proceeding for the sale of his real estate for the payment of his debts, and made no objections to the. proceedings or the decree that was granted in each proceeding.
On the trial of this action lie made a general offer to show that the proceedings in Surrogate’s Court were fraudulent and void, to which general offer the court said : “ The offer I do not entertain.” He did not offer evidence in any way relating thereto. If he had done so it is to be presumed that the court would have received it. The widow was not at the time of the sale interested in the fee of the real property, and it is unnecessary in this case to pass upon any question relating to her dower or other rights in the property. The appellant’s counsel, following the offer to show that the proceedings in the. Surrogate’s Court were, fraudulent and void, made a further offer as follows: “ I offer to prove by each one of the heirs of Win. H. Blood that they had no papers in these proceedings to sell the real estate, served upon them. No notice as required by section 2531 of the Code of Civil Procedure, and that they never personally appeared in court.” To which the court said: “That is a very broad offer; you might have something you could prove.” The appellant’s counsel replied:' “ They will claim
It is further claimed by the appellant that the Surrogate’s Court never had jurisdiction of the subject-matter of the proceedings for the sale of said real property, for the reason that the real property was purchased by the intestate with pension money, and that it was exempt from sale for the payment of intestate’s debts by section 1393 of the Code' of Civil Procedure, and that under section 2749 of the Code of Civil Procedure no authority was given, to the Surrogate’s Court to entertain a proceeding for the sale of such real property for the payment of intestate’s debts. (See Laws of 1876 chap. 448, and Laws of 1880, chap. 178.)
The real property of which a decedent died seized is subject to be disposed of for the payment of his debts and funeral expenses as prescribed in title 5 of chapter 18 of the Code of Civil Procedure, “ except where it is devised expressly charged with the payment of debts or funeral expenses or is exempted from, levy and sale by virtue of an execution as prescribed in title second of chapter thirteen of this act.” (Code Civ. Proc. § 2749.
The only express exemptions of real property from levy and sale by virtue of an execution prescribed by'title 2 of chapter 13 of the Code of Civil Procedure are: First. A seat or pew occupied by the judgment debtor or the family in a place,of public worship.. Such interest, although-in perpetuity, is a limited and usufructory one, and is enumerated in the statute as personal property. (Code Civ. Proc. § 1390.) Second. Lands set apart as a family or private burying ground when designated as prescribed by law to exempt the same. (Code Civ. Proc. §§ 1395, 1396.) Third. A lot of land, with one or more buildings thereon, not exceeding in value $1,000, and designated as prescribed by law as an exempt homestead. (Code Civ. Proc. §§ 1397-1399.)
By section 1393 of the Code of Civil Procedure there is no
Prior to .the decision of the case of Yates County National Bank v. Carpenter (119 N. Y. 550) it was quite uniformly held in this State that the exemptions from levy and sale by virtue' of an execution, as stated in section 1393 of the Oode Of Civil Procedure, did hot extend to property, , real or personal, purchased by the peiisioner with the pension money. By the decision in Yates County National Bank v. Carpenter (supra) it was held that where pension money can be directly traced to the purchase of property necessary Or convenient for the support and maintenance of. the pensioner and his family such property is exempt. Apart from exemptions, property of which a person dies the owner.is subject to the payment of his debts. Exemptions of property from levy and sale by virtue, of an execution do not run with the property exempted, and are not incidents thereof, but are personal favors'to the person exempted. The statutes provide what property shall be deemed assets - Of a decedent to be inventoried, and what property shall be set apart to a widow and the infant children of a deceased' person, and real property, unless devised, descends to tlie heirs at law Of the deceased.
That it was not the intention of the Legislature to extend the exemptions of property purchased by pension money beyond the life of the pensioner is reasonably certain from the fact that it is not-so stated in the statuté and for the further reason that no provisión is made for protecting a bona fide purchaser of the property from a stale claim of such exemptions as in the case now under consideration. Express provision is made for a record in the office tif the clerk or register of the county in the proper book for recording deeds of lands set apart as a family or private 'bury-? ing ground and for a record of exempt homesteads in a book
We are of the opinion that the real property of the decedent in this case was not, at the time of the filing of the petition, exempt from levy and sale by virtue of an execution, and that the Surro-gate’s Court had jurisdiction of the subject-matter of the proceeding. (Matter of Liddle, 35 Misc. Rep. 173; Beecher v. Barber, 6 Dem. 129.)
We are also of the opinion that the heirs at law of the decedent should not now be allowed to assert the 'exemption even if said section 1393 is construed to include an exemption extending beyond the death of the pensioner. The exemption in any event is not specific and absolute, but dependent upon a determination that the real property ivas purchased with pension money. It is necessary to determine such fact in the proceeding. The jurisdiction of the Surrogate’s Court is dependent upon many facts such, as the existence of unpaid debts against the decedent, which must be. determined by the court. (Farrington v. King, 1 Bradf. 182.) It is important for the protection of innocent purchasers and the security of titles to real property that, if exemptions nlay extend beyond the life of a pensioner, the fact upon which such exemption depends be determined at the earliest possible moment and in the first proceeding relating thereto when such exemption can be asserted.
It has been determined by a court having jurisdiction of the persons of the heirs at law of the decedent that the real property in question was subject to sale by virtue of title 5 of chapter 18 of the Code of Civil Procedure. The widow and heirs at law had an
The judgment and order appealed from should be affirmed, with costs.-
Judgment and order unanimously affirmed, with costs.
Code Civ. Proc. chap. 18, tit. 5.— [Rep.
See Laws of 1880, chap. 178;. Laws of 1894, chap. 735.— [Rep..