39 N.Y.S. 737 | N.Y. App. Div. | 1896
The action _s brought to enforce the specific performance of an executory contract for the exchange of real estate.' The land owned by plaintiff is situate in the State of Connecticut; that owned by defendant in this State. After the execution of the contract plaintiff tendered a deed of his premises to the defendant and demanded from the latter a conveyance of his premises and the fulfillment, in other respects, of the provisions of the contract. Defendant refused to accept plaintiff’s deed or execute a deed of his property upon the ground, among others, that the title tendered by plaintiff was defective. The contract was silent respecting title, but the law implies that the parties are entitled to a good and indisputable title, and defendant was entitled to a title which was good, marketable and clear of defects, before he could be put in default of fulfillment of the contract. (Moore v. Williams, 115 N. Y. 586.)
The evidence given upon the trial disclosed that one Elizabeth Anderson was a prior owner of the plaintiff’s property, and she having died intestate, an administrator was appointed of her estate, and plaintiff derives his title through him, by deed executed in virtue of an order made and entered in the Probate Court for the district of Greenwich, in the State of Connecticut, that being the district where plaintiff’s property was situate. Plaintiff’s title is, therefore, dependent upon the construction to be placed upon these proceedings and the law of the State of Connecticut, if any, which authorized them. It was claimed by plaintiff that such authority was conferred upon the Probate Court by virtue of a certain statute adopted
The statute thus established reads: “ The court of probate, upon the application of the executor or administrator of any deceased person whose estate is in settlement in such court, upon hearing after published notice, may, in its discretion, order the sale of the whole or part of ■ any real estate or an undivided interest, therein, in such manner and upon such notice as it shall judge reasonable, taking a sufficient probate bond, and if of the amount realized, after the payment of all debts and charges and incidental charges of sale, a .surplus remains, the same shall be divided or distributed in the same manner as such real estate would have been divided or distributed if the same had not been sold.” The testimony tended to establish, and it seemed to be practically conceded, that no authority existed in the Probate Court to order the sale of a decedent’s real estate, except for the payment of debts, unless such authority be conferred by the provisions of this statute Let.us first examine the proceedings which were taken in the Probate Court which led to the sale. .and conveyance; ■ They consist of a petition, which recites that the deceased left certain real estate within the jurisdiction of the court — describing it; that it could not be beneficially divided, and that it is for the best interest of the estate that the whole of said ' real estate be sold, and prayed that it be sold after due notice and hearing had.. Upon the presentation of this petition an order of publication was made, and upon the return of proof of publication an order of sale was made, followed by an order accepting the return of sale, and subsequent proceedings on the distribution of the proceeds. The statute provides that upon the application to
In that case the order authorized the administrators to sell real estate and raise the sum of $174.99, and they sold and granted by deed of the estate to the amount of $188. It was held that this invalidated the deed, and that a subsequent decree of probate distributing the surplus did not validate their acts. This rule would seem to be quite as strict as any which prevails in this State. (Griswold v. Bigelow, 6 Conn. 259.)
We are not now called upon to say that the omission to give a bond, or the failure to show that one was given, avoids this proceeding; it is all sufficient to say that it puts in jeopardy the title tendered. If, however, we could see that this did not affect plaintiff’s title, there yet remains a more serious question upon the jurisdiction of the Probate Court to make this order of sale. This proceeding was confessedly not necessary to pay debts, nor does it appear that any debts existed. At common law the land- passed to the heir and the administrator took no interest in' the estate. This is the rule here and also in Connecticut (Griswold v. Bigelow, supra); consequently, the administrator could convey no title unless authorized by the proceedings had and taken.
This proceeding was taken purely for the purpose of dividing the estate. It would properly have fallen to the office of a suit in partition. The statute seems to contemplate that the power conferred bears some relation to the payment of debts, as its language is, “ of the amount realized after the payment of all debts ” the surplus shall be distributed. The testimony of the probate judge, called as a
These views lead to a reversal of the judgment and the ordering of a new trial.
All concurred.
Judgment reversed and new trial granted, with costs to abide the event.