author: Wright, J.

text:
    Thomas v. Fleury.
    A building contract made an architect’s certificate of fulfillment a condition precedent to payment. Held, that when the architect unreasonably.and in bad faith refused the certificate, the builder might recover upon giving other proof of performance, as well, it seems, where the action is upon the contract as where it is upon a quantum meruit.

    Appeal from a judgment of the Supreme Court affirming a judgment of the City Court of Brooklyn. The plaintiff brought his action to recover an installment of $2,700 alleged to be due on a contract for carpenter work, materials for a building erected by the defendant, and also for extra work done on the building. The contract for the performance of the work was entered into, and the work commenced, about the 1st September, 1854. It provided that the work was to be done agreeably to the drawings and specifications made by John F. Hondayer, architect, and completed by the 1st April, 1855, in a workmanlike manner, to the satisfaction and under the direction of said architect; to be testified by a writing or certificate under the hand of the architect. The plaintiff was to be paid $11,200 for the work done and materials furnished by him; the payments to be made on the written certificate of the architect in installments of $500, $1,000 and $1,500 at different stages of the work, and $2,700 when it was finished. The contract further provided that should the owner, at any time during the progress of the building, request any alteration, deviation, additions or omissions from the contract, he should be at liberty to do so without avoidance of the contract, and the same added or deducted from the amount of the contract, as the case might be, by a fair and reasonable valuation. If any dispute should arise respecting the construction or meaning of the drawings and specifications, the same should be decided by the architect, and his decision be final and conclusive ; and if any dispute arose respecting the true value of the extra work or works omitted, the same should be valued by two competent persons—one employed by the owner and the other by the contractor—and those two to name an umpire, whose decision should be binding on all parties. The building was to be of brick and brown stone, and the defendant contracted with one Allen to do the mason work and furnish the materials, for the sum of $17,800, to be paid in installments as the work progressed.
    The architect, as the agent of the defendant, directed and superintended the work during its entire progress. Under his direction alterations were made as required by him and extra work performed, especially on the bay windows, at an extra cost, in materials and labor, of $600. The working plans for these windows were furnished by the architect on the 14th April, 1855, after the date fixed in contract for the completion of the building. The plaintiff gave evidence tending to show that during the progress of the work a delay occurred of twenty-one days by reason of alterations which the architect required to be made in the work after it had been done, and also for want of plans and drawings which were to be furnished by the architect; that owing to interruptions and delays in the' mason work, and the work of the plumbers and others employed by the defendant, he was hindered and delayed in doing the carpenter work; that the different installments, according to the contract, except the last, of $2,700, had been paid, and some of them after the 1st April, 1855; and that the work was finished in August or September, 1855. It was also shown that about the 1st August the plaintiff called on the architect to examine the work; that a list was sent to him of work to be done to complete the job, which he caused to be done, and about the 20th August he called upon the architect, who was the defendant’s agent for making payment, for the balance due. The architect met the plaintiff at the building the next day, and they went through together, the architect pointing out and furnishing another list of things to be done to complete the work. The plaintiff caused those things to be done; and afterwards, when he called for the balance due him, another list was furnished by the architect. Regarding the conduct of the architect vexatious, the plaintiff did not perform the work in the last list. It would have cost not more than thirty dollars to do it. The list consisted of trifling matters, in part repairs. About the 1st October the plaintiff requested the architect to give him the certificate required by the contract, which he- refused to do, saying that the work had not been completed, and furnished the last list as work remaining to be done.
    After the defendant had rested, and the plaintiff had rested the second time, the defendant recalled the architect and offered to prove by him that the lumber used in the building was not properly seasoned, and had, by the shrinkage thereof, caused a damage to the defendant of $1,000; that the work specified in the last list furnished to the plaintiff was necessary to complete the work, and that the work had not been completed, in fact, and to his satisfaction. To the testimony offered, and every part thereof, the plaintiff objected, and the referee sustained the objection.

      The referee found, as facts, that on or about 1st September, 1844, the plaintiff and defendant made and executed, in writing, the contract set forth in the complaint; that the work was performed on the part of the plaintiff, according to the terms of said agreement, by September 1st, 1855; that the plaintiff was prevented from completing said work by the time specified in said agreement, in consequence of the interruptions and delays which occurred in the progress of the mason work, and of various alterations suggested and required by the architect; and that, under the circumstances, said work was completed within a reasonable time, and as soon as said interruptions and suggestions permitted; and that said work was carried on to its completion with the knowledge and under the supervision of the architect; that the plaintiff applied for the architect’s certificate, as required by the contract, and he refused to give it; that, in addition to the work and materials called for in said agreement and specifications, the plaintiff, at the defendant’s request, performed certain other work, and furnished certain other materials, in and about the erecting and finishing the buildings mentioned in said contract, which were reasonably worth the sum of eight hundred and eight dollars; that the defendant had expended the sum of eighty-four dollars in and about repairing of the work performed by the plaintiff to make the same conform to the contract, and that the plaintiff omitted to perform certain items of work, which, by the terms of said contract, he was bound to perform; and that the defendant has sustained damages, by. reason of such omission, to the sum of thirty dollars; that the defendant has paid to the plaintiff, on account of the payments which were to be made to him by the terms and provisions of the contract aforesaid, the sum of $8,500-; that there remains unpaid to the plaintiff of the payments, so to be made to him, the sum of $2,700.
    The referee’s conclusions of law, from the foregoing facts, were, that the defendant was not entitled to any deduction for any damages he had sustained on account of any loss of rent of said buildings, or by reason of the failure of the plaintiff to have the same completed by the time specified in said contract, or because said work, or any part thereof, had not been done conformably to the said contract and specifications; and that the said défendant is indebted to the said plaintiff in the sum of $2,585, and interest thereon from 1st October, 1855, and also in the sum of $808 (the referee, in his report, puts this latter sum at $764). The defendant excepted to the findings aforesaid, both of law and fact, and to each and. every thing thereof specifically.
    Judgment was entered accordingly for $3,701.97; and on appeal to the Supreme Court the judgment was affirmed, if the plaintiff would consent to deduct from the amount allowed for extra work the sum of $208, and interest from the date of the judgment. The plaintiff consenting, judgment was affirmed. The defendant appealed to this court.

      William R. Darling, for the appellant.

      R. C. Underhill, for the respondent.
   Wright, J.

Several objections were raised on the trial to the admission or rejection of evidence; but two of which were insisted on in the argument at bar. With the view of showing that work extra and outside of the contract was done by the plaintiff, after putting in evidence the several working drawings furnished to him in the progress of the work by the architect named in the contract, he offered to prove that the work was performed according to the plans furnished; that they showed work which did not appear on the plans annexed to the contract, and in that respect the plans varied. The evidence offered was objected to by ihe defendant on the ground that the same was irrelevant and incompetent; and the objection was overruled by the referee. It is now urged that this ruling was erroneous, not for the reasons assigned to the referee, but because the contract fixed a tribunal for valuation of extra work, and it could not rightfully be investigated by' a court of law. If there is really anything in this grofind, it comes too late, being urged .here for the first time. Ho such ground was hinted at in the defendant’s answer or before the referee. The objection that the offered evidence was irrelevant and incompetent did not direct the attention of the referee to the point. The complaint averred that the plaintiff, at the request of the defendant, did extra work, in and about the erection and completing of. the buildings, which was reasonably worth the sum of one thousand and six dollars, and the defendant answered denying the performance of the work and the value of the same. Evidence in support of the allegations of the complaint, and to maintain the issue thus formed, was not objectionable on the ground of irrelevancy or jncompetency; and this was the only ground of objection before the referee.

After the plaintiff had twice, and the defendant had intermediately rested, the defendant called the architect, and proposed to re-examine him as to new matter, and not to rebut statements of the plaintiff’s witnesses after the latter had resumed the examination. This the referee would not allow to be done, and sustained an objection to receiving the proposed testimony. The refusal of the referee, after the defendant had once rested, to allow him to open the case and reexamine his witness as to new matter, is not a subject for review in this court. It was entirely discretionary with the referee, and the refusal is not a ground for exception.

The only remaining question is, whether the plaintiff was entitled to recover the amount of twenty-seven hundred dollars, the last installment, stipulated to be paid on the completion of the work. The plaintiff and Abraham Allen contracted to erect and finish the building by the 1st April, 1855. Allen was to furnish the materials and do the mason work, for which he was to be paid the sum of $17,800, and the plaintiff to furnish the materials and do the carpenter work, for $11,200. These payments, both to the mason and carpenter, were to be by installments as the work progressed. The last payment of $2,700 was to be made to the plaintiff on the completion of the work. The building was to be erected and finished agreeably to the drawings and specifications of Houdayer, the architect, annexed to the contract. The work was to be done in a workmanlike and substantial manner, to the satisfaction and under the direction of the architect, to be certified by a writing or certificate under his hand. The contract further provided that the installments, at different stages of the work, were to be payable, in each case, on a certificate signed by the architect. The referee found the fact that the work was performed on the part of the plaintiff according to the terms of the agreement. It is true that he afterwards finds that the plaintiff omitted to perform certain items of work, which, by the terms of the contract he was bound to perform, amounting to some thirty dollars, which sum he allowed to the defendant. This was contradictory to the previous finding, and is only to be reconciled on the theory that the referee deemed those omitted items so trivial and insignificant as to justify the finding that the contract had been substantially performed. This was the view taken by the Supreme Court, and I think the correct one. If we were to look at the case and evidence to interpret the apparent contradiction in the findings, it would be quite evident that there had been a substantial compliance; and that these omitted items of work, for which the referee allowed, were hatched up as deficiencies by the defendant’s agent and architect after the parties had gone through the building together, and the work pointed out by the architect as necessary to complete the job had been done by the plaintiff.

It is conceded that the building was not finished within the time prescribed by the contract, viz., 1st April, 1855. The referee finds that the work was completed by the 1st September, and the plaintiff was prevented from completing it within the time specified by the agreement in consequence of the interruptions and delays which occurred in the progress of the mason work, and by various alterations suggested and required by the architect; that the work was carried on to its completion, with the knowledge and under the supervision of the architect, and, under the circumstances, was completed within a reasonable time, and as soon as 'the interruptions and suggestions permitted. When, the defendant and his agents prevented the plaintiff from completing the worlr within the time fixed by the contract, and his architect and agent continues to supervise it after that time, and it is completed as soon as the defendant’s interruptions and required alterations will allow it is no ground for resisting a recovery that the work was not finished by the time specified in the contract.

It was a provision of the contract that the building should be erected and finished agreeably to certain plans and specifications, in a workmanlike manner, to the satisfaction and under the direction of Houdayer, the architect, to be testified by a writing or certificate under his hand, and the defendant was to pay the sums named, in the manner and at the times mentioned in the agreement, provided that in each case a certificate was obtained, signed by the architect. The substance of this is, that the work was to be done under the direction of the architect, who was to be satisfied with it as it progressed, and whose satisfaction was to be evidenced by his certificate in writing; and upon obtaining such certificate, the plaintiff was to be paid certain amounts of the gross sum of $11,200, at certain stages of the work. At these stages, if the architect was not satisfied, he could withhold the certificate, and without it the defendant could refuse to pay. The plaintiff was paid the sum of $8,500 (all of the contract price, except the last payment of $2,700), without any dissatisfaction expressed by the architect, and without his written certificate. These payments were made by the defendant, through the architect, acting as his agent, and no question was raised as to a written certificate until after the action was brought. When the plaintiff required payment of the last installment of $2,700, the only objection was that the work had not been completely finished according to the terms of the agreement. Regarding the action, however, as brought exclusively upon the contract, and that the obtaining of the architect’s certificate was a condition precedent to a recovery, a failure in the latter respect would not be fatal to the plaintiff’s right. The architect was the defendant’s agent, and if he unreasonably and in bad faith refused the certificate, the plaintiff is not to be held responsible, but he may establish his right to recover by other evidence. The certificate is mere evidence of the substantial fact of performance ; and if the kind of evidence of the fact stipulated for is obstinately and unreasonably withheld, a forfeiture of $2,700 is not to be exacted, for that reason, from the plaintiff. The referee found, as facts, that the work was performed on the part of the plaintiff according to the terms of the agreement; that it was carried on to its completion; that the plaintiff applied, for the architect’s certificate, and that he refused to give it. It cannot admit of a doubt that the 'contract being strictly performed, and the party entitled to his money, it was unreasonable and unconscientious in the architect to refuse the certificate. But, again, the original drawings and specifications annexed to the contract, and in reference to which it was expressly made, and which formed a part of it, were so far deviated from by the defendant’s direction, as to render the obtaining of a truthful certificate, pursuant to the contract, impossible, even if the architect was disposed to act in good faith. ■ A certificate of some sort could have been given, but not the certificate insisted on as a condition precedent to a recovery; and' this not through the plaintiff’s fault, but in consequence of the defendant’s directions. Besides, the work progressed with the defendant’s knowledge and approbation, as evinced by the payment of all the installments but the last, without any certificate whatever being obtained or demanded, and the defendant accepted, and went into the enjoyment of the buildings. To defeat a recovery upon the facts found and developed in the case, because of the non-production of the architect’s certificates, would be manifestly unjust to the plaintiff and a reproach to the law.

The judgment of the Supreme Court should be affirmed.

All the judges concurring,

Judgment affirmed.


source: Caselaw Access Project

author: Sutherland, J.

license: Public Domain

text:
    Genet v. Beekman et al.

    The codicil to a will, revoking certain gifts directly to a son, gave them to trustees for his benefit, describing the subject as that portion of the real and personal estate devised and bequeathed by the will as the share of the son. Held, that these terms include a specific legacy of $10,000 given to the son, irrespective of its forming any definite share or proportion of the estate.
    Appeal from the Supreme Court. The plaintiff was the assignee of Thomas H. Rodman, receiver, &c., who recovered a judgment against the defendant, Gerard R. Beekman, for $1,668.17, in the Supreme Court. The defendant Beekman was a son of Stephen D. Beekman, deceased, who died on the 30th day of October, 1856, having made his will June 23,1856, and a codicil October 29,1856. The other defendants, Bayles, Hibbard and Van Wagenen, were named in the will and codicil . of Stephen Beekman, as his executors.
    By the fourth clause of his will, Stephen D. Beekman gives and bequeaths to his two sons, Gerardus B. and Stephen Frederick, all and singular his household goods, and furniture, watches, plate, jewelry, books and family stores, “to be divided between them in equal shares” and in case bis sons cannot agree upon a division thereof, or any part thereof, he desires his executors to make the division of such part as they cannot agree in relation to. He also, by this fourth clause, gives and bequeaths to his two sons $20,000, to be divided equally between them, that is to say, the sum of $10,000 to each of them respectively.”
    By the sixth clause of his will he gives,^devises and bequeaths all the rest, residue and remainder of his estate, real and personal, of whatever kind or nature; the one equal undivided third part thereof to his son Gerard R.; the one other equal undivided third part thereof to his son Stephen Frederick, and the other third to certain grandchildren named.

      By the codicil the testator, after reciting the date of his will, and that he had in and by it devised and bequeathed unto one of his sons, Gerardus Rhodolphus, a certain portion of his estate, real and personal, therein mentioned and described, orders and declares in these words, “ that'my will is, that instead of such devise and bequest to him, my son Gerard Rhodolphus, to and for his own use absolutely, I give and devise all that certain portion of my estate, real and personal, mentioned and described in my last will and testament, as the share of my estate intended thereby to be devised and bequeathed to my said son, Gerard Rhodolphus Beekman, to William Hibbard and Nathaniel Bayles, two of the executors of my last will, &c., in trust, &c., to receive the rents, issues, and profits, and interest thereof, from time to time; and after the payment of necessary charges and expenses, to apply the same toward the support and maintenance of the said Gerard Rhodolphus Beekman, and in such way as to be free, clear and discharged of and from all debts, now by him owing, or hereafter to be-contracted, and from all assignments, mortgages, or incumbrances thereof, by him to be made, for. and during the term of his natural life; and in further trust, from and immediately after the death of the said Gerard Rhodolphus, to convey and distribute the said portion of my estate to and among his widow and issue, if any such then should be him surviving, or the survivors or survivor of them, in equal portions, share and share alike; and if there should be no widow or issue then living, then in trust to convey and distribute the same to and among my heirs or next of kin.” The testator then, by the codicil, gives the trustees, or the survivor of them, power, at any time during the life of the said Gerard Rhodolphus, to grant, bargain, sell and dispose of the portion of the estate, or any part thereof, so devised to them in trust, as aforesaid, and to re-invest the proceeds thereof, and to change, from time to time, the investment thereof, the rents, issues, profits and interest, being applied as aforesaid; but it is declared, that the consent in writing of the said Gerard Rhodolphus shall be necessary for any such grant, bargain, sale, reinvestment, or change of investment.
    The complaint in this case, after alleging that an execution had been issued on the plaintiff’s judgment, and had been returned unsatisfied, sets out the fourth clause of the will and the codicil, and refers to the whole will and codicil, so as to' make them a part of the complaint; and then alleges that the plaintiff had applied to the defendant Beekman, and to the defendants, the executors named in the will and codicil, to apply the household furniture and the $10,000 legacy in the fourth clause of the will contained, towards the payment of his claim, and that they refused to do so. The plaintiff demanded judgment that the said household furniture, plate, &c., and the $10,000 given and bequeathed to the defendant Beekman, by the fourth clause of the will, is a good and subsisting legacy to him, and is not in any manner affected by said codicil,-which has no reference thereto, but applies solely to other devises in other portions and clauses of the will; and that a receiver may be appointed, and the defendants directed to pay over to him the $10,000, and the share of the furniture, &c., of the defendant Beekman, mentioned in the fourth clause of the will, &c.
    The defendants, Bayles and Hibbard, demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The defendant Beekman demurred also. At the special term, judgment for the plaintiff was rendered on the demurrers. This judgment was reversed at the general term, and judgment for the defendants rendered on the demurrers. The plaintiff appealed to this court.

      John H. Reynolds, for the appellant.
    A. Thompson, for the respondents.
   Sutherland, J.

The question is, whether the testator intended, by the codicil, to revoke all the gifts, bequests and devises, directly to his son, Gerard B., in the will, as well those contained in the fourth as in the sixth clause, and to give, devise and bequeath to his two executors, Hibbard and Bayles, upon the trusts mentioned in the codicil, all and every portion or share of his estate, real and personal, which his son Gerard R. would have taken, under the will without the codicil, as well the share of the $20,000, and furniture, plate, &c., given and bequeathed to him by the fourth clause, as the share of the residuary property given, devised and bequeathed to him by the sixth clause of the will; or whether the testator intended, by the codicil, merely to revoke the gift, devise and bequest to him in the sixth clause of the will, and to give, devise and bequeath to his said two executors, upon the trusts mentioned in the codicil, only the share of the residuary property, which his son, Gerard R., would have taken under the sixth clause of the will without the codicil.

It seems to me that no one can read the whole will and codicil without seeing that the testator intended, by the codicil, to place 'in the hands of his said two executors all of his son Gerard’s share of his estate under the will; that is, the shares given to him by the fourth and sixth clauses. What are the words of the codicil? “Whereas I, Stephen D. Beekman, of, &c., have' heretofore made my last will and testament in writing, bearing date, &c., in and by which I have devised and bequeathed unto Gerard Rhodolphus, one of my sons, a certain portion of my estate, real and personal, therein mentioned and described; now, therefore, I do by this, my writing, &c., order and declare that my will is, that instead of such devise and bequest to him, my said son, Gerard Rhodolphus, to and for his use absolutely, I give, devise and bequeath all' that certain portion of my estate, real and personal, mentioned and described in my said last will and testament as the share of my estate intended thereby to be devised and bequeathed to my said son, Gerard Rhodolphus Beehman, to William Hibbard and Nathaniel Bayles, two of the executors,-” &c. By the codicil he gives, devises and bequeaths to the two executors all that certain portion of his estate, real and personal, mentioned and described in the will as the share of his estate intended thereby to be devised and bequeathed to his son Gerard. Now look at the will, and see what portion of his estate, real and personal, he intended thereby to devise and bequeath to his son Gerard. By the fourth clause he gives and bequeaths to him, in express and direct words, a certain share or portion of his estate, that is, one half of all his household goods and furniture, &c., and also a certain other share or portion of his estate, that is, one half of $20,000. By the sixth clause he gives, devises and bequeaths to him, in equally plain and direct words, a certain other share or portion of his estate, that is, a third of all the rest, residue and remainder of his estate, both real and personal. There is no other bequest or devise to his son Gerard in the will. Can anything be plainer, then, than that the share of the household goods, furniture, &c., of the $20,000, and of the residuary property, devised and bequeathed to Gerard by the will, constitute all that certain portion of the testator’s estate, mentioned and described in the will as the share “intended thereby to be devised and bequeathed” to his son Gerard ? It is plain to me that the testator meant, by “ all that certain portion of my estate, real and personal, mentioned and described,” &c., his son Gerard’s certain share or portion of his estate under the will, as distinguished from his son Frederick’s share, or any other share, and not the certain. third mentioned in the sixth clause only, or the certain half mentioned in the fourth clause only. What Gerard would have taken under both clauses, is the portion mentioned and described in the will as the share intended thereby to be devised and bequeathed to Gerard.

If the words devised and bequeathed were used in the codicil in a strictly technical sense, and the property disposed of by the sixth clause consisted both of real and personal property, Gerard’s portions of the personal estate, under both clauses, were technically bequeathed, and his share of the real property, under the sixth clause, was technically devised to him, and the words of the codicil, “ devised and bequeathed,” would technically include or refer to Gerard’s share or portions of the estate under both clauses. But it is suggested that the words of the sixth clause being, “as to- all the rest, residue and remainder of my estate, real and personal, I give, devise and bequeath ” one third to Gerard; and the words of the codicil being, “whereas I have devised and bequeathed” unto Gerard, “ a certain portion of my estate, real and personal,” that it is evident that the testator, in making the codicil, had only the third given by the sixth' clause in his mind, from his using the same words and expressions in the codicil by which the third was given by the sixth clause. I do not see the force of this suggestion. If the testator in making the codicil had only the third part or portion of the residuary estate in his mind, how easy, and natural, and prudent would it have been for him to have referred to the sixth clause of the will, or to have said, whereas I have devised and bequeathed a certain third part or share of my estate, &c. I think the testator, in making the codicil, had in his mind all that he had given Gerard in his will, and intended to place it all in the hands of the trustees beyond the reach of Gerard’s creditors, and improvidence, securing to him only a support and maintenance out of the income thereof. The codicil would appear to have been executed the day before the testator’s death, and from the nature of the trust, and the apparent purpose of creating it, it is not to be presumed that the testator intentionally left the $10,000 out of its protection. It is suggested also that the words of the codicil giving to the trustees the power to manage and dispose of Gerard’s portion given to them in trust, during his life, show that the trustees had no power given them by the codicil to receive the $10,000, and no directions to invest it—only to receive and sell real property devised to them, and re-invest the proceeds. The words of the power are “to grant, bargain, sell and dispose of the portion of my estate so devised to them as aforesaid, to re-invest the proceeds,” &c. The words, sell and dispose of, certainly as appropriately apply to personal as to real.property, and the word devised is defined or qualified by the succeeding words, “ in trust as aforesaid,” referring to the devise and bequest to the trustees of Gerard’s certain portion of the testator’s estate, real and personal. It is plain that the words of the power, and of the whole codicil, apply appropriately to both real and personal property. There is no allegation in the complaint as to the value or amount, or nature of the property, which passed under the sixth clause of the will, or, indeed, that any passed.

In answer to the suggestion that the trust would be void as to .the household furniture, &e., and $10,000, by the provision of the Revised Statutes abolishing all trusts excepting certain active trusts, and that it is not to be presumed that the testator intended to create an illegal trust, it is a sufficient answer to say, that the provision of the Revised Statutes referred to does not apply to personal property. As to the real estate, if there was any, the trust is certainly an active trust, within § 55 of the statute; and if the provisions of the statute applied to trusts of personal as well as to trusts of real property, I do not see why the trust would be void as tó the $10,000.

It is also suggested, on the part of the plaintiff, that if he was not entitled to the relief asked for in the complaint, he was, nevertheless, entitled to reach and apply on his judgment all income above what would be necessary for the support of Gerard, and, to determine that question, to have an accounting, and that, therefore, the judgment at special term for the plaintiff on demurrer was right. Hot only was there no such relief asked for in the complaint, but the allegations would not have authorized such relief to be asked for or granted. The complaint was framed on a different theory, and no such point would appear to have been taken in the court below.

My conclusion is, that the judgment of the Supreme Court should be affirmed, with costs.

All the judges concurring,

Judgment affirmed.


author: Selden, J. Sutherland, J., (dissenting.)

text:
    Wiles v. Peck.
    The submission to arbitration of any claim to a freehold in real estate, being prohibited by statute, is not merely voidable, but is void and incapable of ratification.
    Since the act of 1849, for the protection of the rights of married women, it seems that no acknowledgment is requisite to a conveyance of the separate estate of one.
    Appeal from the Supreme Court. This action was commenced in August, 1856, to recover damages for an alleged trespass upon a farm in the county of Cortland, and was tried in January, 1858, at the Cortland Circuit, before Mr. Justice ' Mason and a jury, when» the plaintiff was nonsuited. An exception to the decision granting the defendant’s motion for a nonsuit, which was affirmed at the general term, presented the only question brought here for review.
    The facts admitted and proved on the trial were as follows: . William Cameron, who, at the time -of his death, was seised of the premises in controversy, died intestate, in August, 1850, leaving a widow, and one son (William H. Cameron), and six daughters, one of whom was the wife of the defendant. All the daughters were married, and their husbands living. Shortly after the death of William Cameron, the widow and all the daughters, with their husbands, executed an instrument, by which, after reciting that William Cameron died without making any formal or legal disposition or division of his estate, real or personal, and believing that he had made his wishes known in reference to such disposition or division to his wife, and to his brother, Peter Cameron, previous to his decease, the parties agreed to submit “the matter of such dispbsition or division ” to the decision of said widow and Peter Cameron, and abide such decision as heartily and firmly as if the said William Cameron had done the same by his last will and testament. And they further agreed and bound themselves, that if they, or either of them, should refuse to abide such disposition or division, that they, by said instrument, released all their right, title and claim to the estate, both real and personal, of which the said William Cameron died seised, or of which he was possessed, and that that indenture was intended to operate as a quit-claim to all real estate of said William Cameron, in case of such refusal, by any one refusing. This instrument was signed and sealed by all the parties, but there was neither subscribing witness nor acknowledgment of its execution.
    Shortly after the submission, the widow and Peter Cameron made their award in writing, with a subscribing witness, by which they gave to William H. Cameron the farm on which he resided, on his paying certain sums to three of the daughters, including one hundred dollars to ISTancy Peck (wife of the defendant), all the amounts payable in two years with interest; and they directed that all the heirs should give a joint quit-claim deed to said William H. Cameron of the premises. A colt was awarded to another daughter, and all the remainder of the estate, which included the farm on which the alleged trespass was committed, as well as some personal estate, was awarded to the widow for life, on her paying one of the daughters twenty-five dollars, and at her decease was to be equally divided between the daughters. When the award- was made, some of the heirs were present, but Mr. and Mrs. Peck were not. A quit-claim deed, of the farm awarded to William H. Cameron, was there drawn up, in which the widow and daughters, and their husbands, were named as grantors, and William H. Cameron as grantee, which was then and soon afterwards signed by all the grantors except Mr. Peck. Eb formal delivery of the deed was shown, but it was in the hands of William H. Cameron, about four weeks after its date, and was delivered by him to a justice of the peace for the purpose of obtaining the acknowledgment of its execution by the grantors, and with a request, when the acknowledgments were obtained, to return the deed to him. All who signed it acknowledged its execution, excepting Mrs. Peck, who refused. The deed was not delivered to Mr. Cameron, after the acknowledgments were taken, but remained in the possession of the justice, and was burned by accident, with the building in which it was kept. The widow and William H. Cameron paid to the daughters the several sums directed by the award to be paid to them, excepting the one hundred dollars required to be paid to Mrs. Peck, which was offered to her by her brother within the two years, and she refused to accept it. William H. Cameron sold the farm awarded to him, about three years after the award. The widow occupied the other farm (which was the homestead of her husband in his lifetime,) until the 8th of July, 1856, when she leased it to the plaintiff for three years. The plaintiff took possession the next day and remained in possession until after the commencement of this action. In the latter part of the same month, the defendant, with his wife and children, and in right of his wife and as lessee of Julia Tarbell, one of her sisters, entered upon the premises, against the remonstrances of the plaintiff, and remained there some days, in the occupancy of the house and barn, and on account of that entry this action was brought. It was proved that shortly after the award was made, Peck said he was satisfied with it; and in the spring of 1856, when Mrs. Cameron was about leasing the farm, he applied to her for it, and she refused to rent it to him. In the spring of 1851, William H. Cameron released to his sisters, excepting Mrs. Peck, all his interest in his father’s estate, . aside from the farm awarded to him.
    On these facts, the defendant’s counsel moved for a nonsuit on the ground that the award was void and transferred no title to the premises to Eleanor Cameron, the lessor of the plaintiff, and that the defendant and his wife had done no act to estop them from questioning its validity: that the defendant was not a trespasser, having entered in right of his wife, who was a tenant-in-common of the premises in question.
    The plaintiff claimed that a cause of action was fully proved: that the widow had a. life estate under the award, ratified and acquiesced in by both the defendant and his wife: that the deed of the wife was good and effectual between the parties, though not acknowledged.
    The motion was granted, and the plaintiff’s counsel excepted.

      Amasa J. Parker, for the appellant.

      John H. Reynolds, for the respondent.
   Selden, J.

On the death of William Cameron, the fee of the farm in controversy descended to his seven children, as tenants-in-common, subject to their mother’s right of dower; and Mrs. Peck, as one of the tenants-in:common, and her husband, by her authority, were justified in entering upon the premises, unless she had in some way divested herself of her right. The widow’s right of dower was but a chose in action, and no one claiming under her by virtue of such right could exclude any of the heirs. (Green v. Putnam, 1 Barb., 500.)

This court has already decided that the submission and award which have been introduced in this case are void. The question came before the court under the following circumstances. : Mrs. Cameron having received letters of administration upon her husband’s estate, neglected to file in the office of the surrogate an inventory of the estate, and a summons was issued by the surrogate, on the application of Hiram Peck, in behalf of his wife, requiring her to return the inventory, or show cause why an attachment should not issue against her. On the return of the summons no inventory was filed, and the administratrix showed, for cause why an attachment should not issue, the submission and award which have been introduced by her tenant in this case. The surrogate held the cause shown sufficient, and refused the attachment This order was affirmed by the Supreme Court. On appeal to this court, the judgment of the Supreme Court and the .order of the surrogate were reversed, on the ground that the submission and award were void.

It is now claimed that the submission and award have been ratified by the defendant and his wife, and are therefore effectual to protect Mrs. Cameronfs life estate in the premises in dispute; or at least that there was some evidence of ratification which gave the plaintiff a right to submit the question to the jury. It is also claimed that the acts of Peck and wife have been such as to estop them from claiming the premises in hostility to Mrs. Cameron. In regard to the question of ratification, it is sufficient to say that the submission and award were pronounced void, because they were in conflict with the statute, which declares that no submission to arbitration “ shall be made respecting the claim of any person to any estate, in fee or for life, to real estate.” (2 R. S., p. 541, § 2.) Being prohibited by statute, the submission and the award in pursuance of it were not merely voidable, but void, and consequently incapable of ratification. Acts which would pass the title, or estop Mrs. Peck from claiming it, without reference to the award, and such only, would be available to the plaintiff, to sustain his action.

In considering the question of estoppel, the acts and declarations of the husband must be disregarded. The property belonged, under the acts of 1848 and ’49 “ for the better protection of the property of married women,” exclusively to the wife, and the husband could do no act to prejudice her title. The only act of' the wife, upon which reliance is placed, as creating an estoppel, is her signature to the deed purporting to convey to her brother the farm awarded to him. If the question were now first presented, whether the statute of 1849, authorizing a married woman to convey real and personal property “in the same manner and with the like effect as if she were unmarried,” rendered her execution of a deed for the conveyance of land effectual without acknowledgment, I should be inclined to hold that it did not, and that the provision of the Revised Statutes declaring that no estate of a married woman residing in this State should pass by any conveyance not acknowledged, still remained in force, on the ground that there is no express repeal, and a repeal by implication is never held to take place where both acts may stand together. The contrary, however, has been held, and it is too late now to question the correctness of that conclusion, involving, as it doubtless would, the validity of many titles. (Blood v. Humphrey, 17 Barb., 660; Andrews v. Shaffer, 12 How., 441; Yale v. Dederer, 18 N. Y., 271.) Assuming, however, that the deed was effectual to convey her interest in the land described in it, there was nothing in the transaction to estop her from claiming her interest in the other lands descended to her from her father. The absence of any evidence whether her signature to the deed was the first or the last, or that it was designed to influence, or that it did influence, the action in any respect of her mother, or her co-heirs, leaves the plaintiff’s case without any of the features which characterize an estoppel. (3 Hill, 222; 9 Barb., 618; 3 Kern., 638.) Indeed, whatever may have been her declared object in executing that deed, and however it may have influenced the other parties, I am not able to see any ground on which it could be held to estop her from asserting her title to other lands. (2 Leon., 285; Reeves’ Dom. Rel., 2d ed., 108.) Nothing, therefore, appears upon the record in this case which could justify a jury in finding that Mrs. Peck had parted with, or impaired her title to one seventh of the farm in controversy, which descended to her on the death of her father, and her entry upon it, and that of her husband with her, was rightful, and the nonsuit was properly granted. The defendant was, I think, equally protected, and for substantially the same reasons, under the lease from Mrs. Tarbell.

The apparently harsh and unfili'al character of the defendant’s conduct is urged as a reason for sustaining the widow’s right to the exclusive possession of this homestead. Whether circumstances may not exist, which could not properly appear in the case, to soften if not remove the harsh features of the transaction, we have no means of knowing; but if we knew affirmatively that there were none, it would still be our duty to dispose of the case according to the legal rights of the parties as they appear clearly before us, leaving any moral questions which may result from the conduct of the parties to be disposed of by themselves. All attempts of courts, especially courts of last resort, to do better justice in particular cases than the rules of law will admit, are proverbially prone to fall short of their object in the particular cases; and by the introduction of bad precedents are found by experience to be promotive of injustice.

The judgment of the Supreme Court should be affirmed.

Denio, Ch. J., Smith, Gould and Allen, Js., were also for affirmance.

Sutherland, J., (dissenting.)

The submission and award were void. (Peck v. Cameron, in Court of Appeals, not reported.) The award was made the 13th of August, 1850. The deed for the farm which was awarded to William H. Cameron, which was signed and sealed by all the heirs of William Cameron, the intestate, and by his widow, and delivered absolutely 'and upon no condition to William H. Cameron a few days after the award, was good and operative between the parties, though not witnessed or acknowledged, and took effect immediately on its delivery. (Wood v. Chapin, 3 Kern., 514; 17 Barb., 103.)

By the act of 1848, as amended in 1849, Haney Peck, the wife of the defendant, could convey to William H. Cameron her estate or interest in the farm awarded to him as if she had been a feme sole. Her husband’s rights or estate as tenant by the curtesy, was subject to his wife’s power of conveyance given by the statutes.

The 30th of May, 1851, William H. Cameron released all his interest in the estate, except the farm awarded to him, to all the heirs except the defendant’s wife. He and the widow, also, after the award, and it is to be presumed from the case, after the delivery of the deed to him of the farm awarded to. him, paid- the sums of money required by the award to be paid by them to the heirs, except that the defendant’s wife refused to accept the $100, which by the award William H. Cameron was to pay her.

The widow lived on and had possession of the farm in which she was awarded a life estate until 1856, when she executed to the plaintiff two leases, with covenants of peaceable possession for the bous in quo, under which the plaintiff was holding at the time of the alleged entry and trespasses.

It is to be presumed, I think, that the widow would not have executed the deed to William H.. Cameron, or paid the money she was required to pay by the award, or give the leases to the plaintiff with covenants of peaceable possession, if the defendant’s wife had not ratified the award, so far as to execute the deed to William H. Cameron for the farm awarded to him. Therefore, I think she was estopped, at least so far as asserting a right of entry, possession or title against the plaintiff, and if she was estopped, her husband was, his rights being derived from her or coming by virtue of her estate.

I think the judgment of the Supreme Court should be reversed.

Davies and Wright, Js., were also for reversal

Judgment affirmed.


author: Denio, Ch. J.

text:
    Drew v. The Sixth Avenue Railroad Company.
    The act of the driver or brakeman of a street car in assisting passengers to get on board is in the course of his employment, and makes the principal liable for negligence in its performance.
    The passenger being a boy of eight years, it was not, as matter of law, negligence in Jhis parent to send him out without a protector.
    The boy being injured, the parent’s damages are not confined to the loss of his services down to the trial, but include all such prospective loss as must necessarily follow from the injury.
    Appeal from the New York Common Pleas. The case is fully stated in the following opinion:

      John K. Porter, for the appellant.

      A. J. Vanderpoel, for the respondent.
   Denio, Ch. J.

This action was prosecuted in the Court of Common Pleas for the city and county of New York, to recover for an injury to the plaintiff’s son, a lad of about eight years old, who was injured by being run over by the defendant’s horse cars in one of the streets of the city, and resulted in a verdict and judgment for $2,500 damages. The plaintiff was a widow, and her son lived with and was supported by her; and on his part he performed slight services, such as going of errands and assisting his mother in a store kept by her.

It appeared that the lad was on his way to school, his course being down the Sixth avenue, and he desired to ride on the defendant’s cars which were proceeding in that direction. According to his account of the matter, which was corroborated by the driver, he made, a signal by holding up his finger to the brakeman who stood by the side of the driver, and came towards the car, opposite the front platform on which the driver and brakeman were standing, the latter beckoning him to come forward. When he came near enough, the brakeman seized him by his coat with a view to /place him on the platform, but, on account of his weight he slipped out of his hands upon the track and the front wheel passed over his foot, crushing it so that it had to be amputated.' According to the testimony of the brakeman, he did not in any way invite the boy to come to the platform, but made a sign to forbid and repel him, but he came forward, nevertheless, and stumbled and fell under the wheel, the witness endeavoring, unsuccessfully, to get hold of, in order to save him. There was newly fallen snow lying on the ground. It was not pretended that the train stopped, or that its speed was slackened as the boy approached. It was shown that it was against the rules of the Company to allow passengers to get .on or off the front platform. The penalty was dismissal. The brakeman was also a driver. These two drivers were on the platform in consequence of their having a double team. They took turns in driving,—when one drove the cither managed the brake. A surgeon explained the nature of the injury, and of an apparatus which had been contrive'd to enable him to walk; but gave it as his opinion that he was disabled for life, and would eventually have to use crutches.

The judge charged the jury, laying down the law upon the subject of negligence with accuracy, and stating, in effect, that the verdict ought to depend upon the conclusion they should come to as to the two contradictory accounts of the facts which had been given by the witnesses. ■ Among other remarks which he made were the following: “ If this driver or brakeman saw fit to intimate to the boy to come forward, and he followed that intimation, and then, if instead of stopping the car, he seized the person of the child to lift him perforce upon the’moving car, there can be no doubt but that would be an act of negligence—that kind of negligence in the discharge of duties appertaining to his employment for which his principal would be liable. The principal is not liable for the willful acts of. his agent, or for an act done out of the course of his employment; but this would be an act done in the .course of his employment—the inviting or assisting or getting passengers on the car — for which the law would hold the principal responsible.” The defendant’s counsel excepted to this portion of the charge. He also desired instructions to be given to the jury to the following effect: that it was negligence in the plaintiff to allow the lad to be in the streets without a protector, on account of his tender age; that the plaintiff was not entitled to recover damages for the prospective value of the services of the child beyond the day of trial, and that the evidence did not warrant a recovery for any sum beyond nominal damages; and he excepted to the several rulings by which the judge declined to give either of these instructions.

The exception to the charge is sought to be supported by the suggestion that it assumes that it was a part of the duty of the brakeman to assist passengers to get upon the cars, which is argued not to be the case. It does not distinctly appear what the extent of the duties of the two persons who were stationed on the platform to direct and to manage the brake were. If the defendant had desired to make a question upon that point, he should have called the attention of the judge distinctly to it. It does not appear whether the defendant had any other servant upon the train. Prima facie, the persons controlling the motions of the train, and regulating its stoppings and its startings, would be those who would act in the admission and the discharge of passengers. If it was otherwise, in the present case, the defendants should have shown it. There is no force in the suggestions that the brakeman was not in the service of his employers in attempting to assist the boy to get upon the car, or that his act was one of force and violence for which his employers were not responsible. He was acting within the scope of his employment in getting the lad on board, and the Company is not the less liaable jjecause he performed that act in an improper, negligent and dangerous way. Again, the argument assumes that the jury were instructed that, as' matter of law, the act of the brakeman was negligence. I do not think the judge attempted to lay down any rule of law. In the course of a comment upon the facts he affirmed, that a certain state of things, which one version of the evidence tended to prove, would, without doubt, be negligence. In this, we think, he was quite right, though there is nothing to show that he intended to take the question from the jury.

Heither of the requests for instructions to be given to the jury were such as it would have been proper to give. It was not, as a matter of law, negligent or in any way improper for the plaintiff to send her son to school without an attendant. If the proposition were tenable at all, it was for the jury and not the court to pronounce it. The plaintiff could not have a second action for the act of negligence by which her son was injured, and she was therefore entitled to recover the whole of the damages which were inevitable from the nature of the injury in this action. The amount of these damages was a matter belonging to the jury to determine. It would not have been right for the judge to charge, as he was requested to do, that they should be nominal. It follows that the judgment ought to be affirmed.

All the judges-concurring,

Judgment affirmed.


author: Davies, J.

text:
    Forbes v. Halsey.
    The purchase at a sale of real estate for the payment of an intestate’s debts, ' by one acting as the agent or for the benefit of the administrator, is void, ! and the title of the heirs is not affected thereby. ¡

      It seems, that chapter 82 of 1850, for the protection of purchasers at sales made by order of surrogates, is constitutional in its retrospective provision as to titles claimed under sales made before the statute: Per Davies, J.; Denio, Ch. J., and Smith, J., concurring.
    The evidence necessary to confer jurisdiction upon a surrogate to order the sale of real estate on the application of an administrator, considered and discussed, per Davies, J.
    Appeal from the Supreme Court. The facts are stated in the following opinion:

      Amasa J. Parker, for the appellant.

      John K. Porter, for the respondent.
   Davies, J.

This is an action of ejectment brought to recover two village lots in the town and village of Ithaca. The wife of the plaintiff claims the premises as the heir-at-law of her father, Stephen B. Munn, junior, who died October 13, .1840, intestate, being the owner of and seised in fee of said lots: that he left him surviving the wife of the plaintiff and a son, his heirs-at-law: that the said son had since deceased, leaving a son his only heir-at-law. The defendant was in possession óf the premises, and claimed to hold the same by title derived as follows:

On the 31st of October, 1840, the surrogate of the bounty of Tompkins .duly appointed Stephen B. Munn, of the city of New York, and Horace Mack and Jeremiah S. Tourtellot, of Ithaca, administrators, &c., of Stephen B. Munn, Jun., deceased. A bond was given by the said administrators in the usual form with sureties, and approved by and filed with the surrogate, November 11, 1840, and on the same day, letters, in the usual form, were duly issued by said surrogate to the said administrators. The inventory of the personal estate of said deceased was made and appraised, and said appraisement duly verified and filed in the office of said surrogate on the 3d day of December, 1840, by which it appeared that said personal estate amounted to the sum of $26,674.42. On the 5th of June, 1841,. the said administrators presented their petition to said surrogate, duly verified, setting forth that they had filed an inventory of the personal estate of said deceased, and had discovered that the sum was insufficient to pay his debts. That the outstanding debts of the deceased, due and unpaid, as near as the same could be ascertained, amounted to about the sum of $60,000. That said deceased died seised of certain parcels of real estate, among others that described in the complaint in this action: that his heirs-at-law, the wife of the plaintiff, and his said sons, were minors under the age of twenty-one years. The petitioners prayed that they might have. authority granted to them, pursuant to the Revised Statutes, to mortgage, lease or sell so much of the real estate of the deceased as should be necessary to pay his debts. On the seventh of June, 1841, an order was made by the surrogate appointing a guardian ad litem for the said infants, for the purpose of appearing for and taking care of their interest in said proceedings; and said order recited, that due notice of the application for the appointment of said guardian had been served on said minors. A disinterested freeholder was thereupon appointed to take charge of the interest of said infants. Letters of guardianship were issued to said guardian, by said surrogate, on the 7th of June, 1841, reciting all said proceedings and duly appointing him guardian for the purpose aforesaid. On the 15th June, 1841, the said surrogate made an order, reciting that it had been made satisfactorily to appear to him that' the personal estate of the said deceased was insufficient to pay his debts, and requiring all persons interested in the estate of said deceased to show cause before him, on the 26th of July then next, why authority should not be granted to said administrators to mortgage, lease or sell so much of the real estate of the deceased as should be sufficient to pay his debts. Notice of such order was duly published, in a newspaper printed in said county of Tompkins, for four .weeks, commencing on the 26th of June, 1841. On the 26th of July, Mack and Tourtellot made and filed with said surrogate an affidavit setting forth that the whole personal property of said deceased which had come to their hands as administrators would amount, so far as they could ascertain the same, to about the sum of $11,600; that part of the sum had been applied to the payment of the debts of the deceased, and that after the whole is applied, there would remain due and outstanding debts to the amount of about $29,000, without including two mortgages of about the sum of $5,550, and they state that money could not be advantageously raised by a mortgage or lease of said real estate, but that in their opinion the whole of the real estate of said deceased will have to be sold-to pay his debts. A bond for the payment of the proceeds of the sale of said real estate, in the penal sum of $40,000, was duly executed by' said administrators and a surety, and filed with said surrogate on the 19th August, 1841.

On the 26th July, 1841, the surrogate made an order or decree, declaring that on satisfactory proof he adjudged and decreed that the said deceased was indebted to the several persons therein named, in the sums set opposite to their respective names, which included a debt due to the said Stephen B. Munn, one of said administrators, the total of which amounted to the sum of $35,213.41. On the 19th of August, 1841, the said surrogate made an order for the sale of the real estate of the said deceased, for the payment of his debts, which recited the above-mentioned proceedings and the facts aforesaid. Due notice of the time and place of the said sale of said real estate was given and published, and a report of the sale was made by the administrators' and duly verified, setting forth that the premises described in the complaint in this action were duly sold at public vendue and bid off by William H. Munn for the sum of $5,850, that being the greatest sum that could be obtained therefor, and that due notice was given of such sale, and that it was in all respects conducted fairly and bona fide. On the 20th of November, 1841, an order was made by the surrogate confirming said sale, and the administrators, by deed dated December 1, 1841, and recorded March 25, 1844, conveyeá - said premises to the said purchaser. On the 25th of January, 1842, the said administrators filed with the surrogate an account showing the application of the proceeds of said sale. William H.. Munn and wife, by deed of quit-claim, conveyed said premises to Stephen B. Munn. This deed was dated October 7, 1842, and recorded November 17, 1842. Stephen B. Munn and wife, by a warranty deed, dated August 1, 1843, and recorded August 21, 1844, for the consideration of $6,500, granted and conveyed said premises-to one Nicoll Halsey, and on the 1st of June, 1848, the said Nicoll Halsey and wife conveyed the same premises to the defendant, Robert Halsey. The defendant also produced and proved the record of.a judgment in the Supreme Court, wherein the said administrators were plaintiffs, and the plaintiffs in this action were the defendants, which action was commenced on the 18th day of October, 1850, for the purpose of affirming the proceedings before the surrogate. The- complaint set forth the proceedings before the surrogate, and averred that "the said Stephen B. Munn 2d had died insolvent, leaving real and personal estate in the aggregate, at its fair value, amounting to about the sum of $20,150, and owing bona fide debts to the amount of at least $42,936, over and above incumbrances by mortgage, as settled and allowed by the surrogate. It avers the appointment of the guardian for the said infants, upon the proceedings before said ¡surrogate, to take charge of their interests in the same, and also avers the due publication of the order to show cause, made by said surrogate, for leave to mortgage, lease or sell said real estate, but that no proof could be found on file with said surrogate of the service of said notice upon said guardian, but the plaintiffs aver that, in point of fact, said notice was duly-served upon said guardian. After setting forth fully the proceedings before the surrogate, the sale of said premises, and the conveyances above mentioned, the plaintiffs state in their complaint that Stephen B. Munn, the third son and heir of said Stephen B. Munn, 2d, deceased, after he attained full age, and on the 12th of ¡November, 1849, by his deed of confirmation ■and release, duly executed and acknowledged, fully ratified and confirmed all and singular the proceedings had before' the said surrogate. ,The complaint states that doubts had been suggested as to the regularity of said proceedings, particularly that it was omitted, in the petition presented to the surrogate for authority to sell said real estate, to state the amount of the personal property which had come to the hands of said administrators, and that there was no proof of service of the order to show cause upon the guardian of said infants, and said plaintiffs asked the aid of the court to ratify said sale. It was also averred that Forbes and his wife were ready and willing to •ratify and confirm the same, but that Mrs. Forbes, being still an infant under the age of twenty-one years, could execute no valid conveyance, and the plaintiffs prayed that, by an order 'or decree of said court, the said proceedings might be fully ratified and confirmed, and that said Forbes and his wife might be perpetually barred from setting up any claim or title to said premises. On application to the Supreme Court by Forbes and his wife, Forbes was duly appointed the guardian ad litem, of his wife in that suit.

An answer was put in by Forbes on his own behalf, and as guardian of his wife, admitting all the allegatiqns of the complaint, and submitting to such decree as the court might think proper to make in the premises, and the cause was regularly brought to a hearing on complaint and answers, and a notice to the defendants, and a judgment or decree was made therein on the 26th of ¡November, 1850, at a special term of said court, wherein and whereby it was ordered, adjudged and decreed, that the sales of the said real estate, made by order of the said surrogate, and all and singular the proceedings had before him, and the several deeds and conveyances thereof and the title acquired thereby, were fully ratified and confirmed. And it was further ordered that the defendants therein and each of them, and their heirs and all claiming under them, be perpetually barred from claiming, asserting, or setting up any title, claim or demand of, in or to said premises or any part thereof.

The plaintiffs raised the following objections to the matters urged and put in evidence to sustain the defence:

■ 1st. That the surrogate had acquired no jurisdiction in the proceedings to sell said real estate, for the reason that the petition was not accompanied with and did not contain an account of the personal estate of said deceased, nor of the debts against him, nor the names of his creditors, nor the consideration of the debts against him.

2d. That there was no evidence that ten days’ notice of the appointment of a guardian ad litem had been served on said minors.

3d. That it appeared by said judgment record that, at the time such guardian was appointed, the said Mary B. Forbes was under the age of fourteen years, and there was no evidence of the service of notice of such appointment on some person of suitable age and discretion, having the care and custody of said infant.

4th. That there was no evidence of the service of the order to show cause on the minors.

5th. That there was no evidence of the service of said order on the guardian.

6th. That there was not sufficient evidence of the publication of the order to show- cause.

7th. That the affidavit of Mack and Tourtellet was inadmissible, having no effect to remedy’ the previous defects and insufficiency; and it was of itself insufficient, as it only accounts for personal property which came to the hands of said two administrators.

8th. That there was. no sufficient proof of the publication of the notice of sale.

9th. That the judgment in the- Supreme Court in favor of the said administrators, against these plaintiffs, had no effect to affirm and render valid the proceedings before the surrogate, 1st, because the record contained no evidence of the appointment of a guardian for the said Mary B. Forbes; 2d, that the Supreme Court had no jurisdiction to render such a judgment; 3d, that it could not operate as an estoppel against the said Mary B. Forbes, she being an infant.

The said justice then decided that, in consequence of the introduction of the judgment of the Supreme Court, it became unnecessary for him to rule or decide the several points raised as to the proceedings before the surrogate, and therefore declined so doing, to which the plaintiff’s counsel excepted.

He further decided that the plaintiff’s counsel could not, in this form, take advantage of the want of an appointment of a guardian ad litem to said suit for said infant defendant, Mary B. Forbes; to which decision the plaintiff’s counsel also excepted.

The said justice also held and -decided that the said judgment in the Supreme Court must be regarded ás affirming and rendering valid the proceedings before said surrogate, and that the jurisdiction of said Supreme Court, in rendering said judgment, could not be questioned in this form; to which the plaintiff’s counsel also excepted.

The said justice further decided that the said Mary B. Forbes was estopped by said judgment in the Supreme Court, from questioning the validity of the proceedings before the surrogate; to which decision the plaintiff’s counsel also excepted.

The plaintiffs then offered to prove that William H. Munn bid off the premises in question as the agent and for the benefit of the said Stephen B. Munn, which offer was overruled by the said justice, and the plaintiffs also excepted.

The jury, under the direction of the said justice, found a verdict for the defendant, and directed the said exceptions in the first instance to be heard at the general term, and which, on hearing the same, rendered judgment for the defendant, from which the plaintiffs appeal to this court.

It is objected, in the first place, to the title acquired by the defendant under the proceedings for the sale of the real estate of Stephen B. Munn,-2d, that the surrogate acquired no jurisdiction in the proceedings to authorize said sale, for the reason that the petition was not accompanied with and did not contain an account of the personal estate of the said deceased nor of the debts against him, nor the names of his creditors, nor the consideration of the debts against him.

An examination of the provisions of the Revised Statutes will show that no such requirements are therein contained. I apprehend that to give the surrogate jurisdiction, it must appear to him that administrators have been duly appointed ; that they have made and filed an inventory of the personal estate of the deceased, appraised and verified according to law; that such inventory may be regarded as the basis of their subsequent action, and is to be considered in all subsequent proceedings before the surrogate, at least until the contrary affirmatively appears, to be a true and perfect inventory of all the goods, chattels and credits of the intestate. Such personal property is to be sold, if necessary, to pay the debts of the deceased. (2 R. S., p. 87, § 25.) The amount of the personal property, therefore, which comes to the hands of the administrators, will be assumed to be the amount of the inventory as returned and filed. And in the settlement of their account the administrators are to be charged with the amount of such inventory, and all increase or income thereupon, and also all personal property of the intestate which may be proven to have, subsequently to the making of the inventory,- come to their hands. They are, on such final accounting, to be credited with all just and legal payments made by them as such administrators, and with any losses happening on the sales thereof, when such sales have.been made in good faith. When, therefore, this inventory was filed in the case of this intestate, showing the amount of his personal estate to be $26,-674.42, the law ascertained and adjudged, in the absence of any proof to the contrary, that that amount of personal property came to the hands of the present administrators, and it also assumed, what it made it their duty to do, that the same had been applied to the payment of the debts of the intestate; and in the case of administrators, it would be a matter of supererogation to repeat in the petition, what must appear by the records of the surrogate’s court, the amount of personal property which came to their hands, and the application thereof. And in case of administrators, but one application is to be made, that is, the payment of debts. With executors it is different; and many reasons might be suggested why they ought to be required to set forth the amount of personal property coming to their hands, and the application thereof, before they could have an order to sell the real estate of their testator. , As preliminary to the application for leave to sell the real estate of their intestate, the administrators must discover that the personal property of their intestate is insufficient to pay his debts. When such discovery is made, the statute authorizes them to apply to the surrogate for authority to sell so much of the real estate as may be necessary to pay such debts. Such application may be by petition, and the statutes declare what it shall contain and be duly verified. The petition in the present case states the fact of the making and filing the inventory, and refers to the same with sufficient certainty to have it regarded as a part of the application. Papers on file in the surrogate’s office were held to be sufficient, in conjunction with the petition, although not referred to in it as sufficient with the petition, to give the surrogate jurisdiction, in a similar application in Jackson v. Crawfords (10 Wend., 533). The amount of the personal estate, therefore, appeared. Its application to the payment of the debts was made by law, and, until the contrary appeared, the surrogate was right in assuming that it had been so applied. The fact that the personal estate set forth in the inventory had been discovered by the administrators to be insufficient to pay the debts of the intestate, is also distinctly stated. The debts outstanding of ■ the intestate, due and unpaid, as far as the same could be ascertained by the administrators, were stated to amount to about the sum of $60,000, or, in other words, about the sum of $30,-000 over and above the total amount of the personal estate of the intestate. It also set out the real estate of the intestate, and the names and ages of the heirs of the intestate, and was duly verified by the oath of the petitioners. I am unable to see why the surrogate had not before him all the facts needful to give him jurisdiction, as all was made to appear which the provisions of the statute required. (2 R. S., p. 100, § 2.) The Revised Laws of 1813 (vol. 1, § 23), required the administrator, when he should discover or suspect that the personal estate of his intestate was insufficient to pay his debts, as soon as conveniently might be, to. make a just and true account of ;the said personal estate and debts, as far as he could discover the same, and deliver said account to the surrogate and request his aid in the premises. Such account is not required by the Revised Statutes. In Jackson v. Robinson (4 Wend., 436), the Supreme Court held that the surrogate acquired jurisdiction on the suggestion of the administrator of a deficiency of assets, and on receiving an account of the personal estate and debts of the deceased. In this case it does not appear that any other account was presented to the surrogate than the. statement .contained in the petition of the administrator, “that the petitioner had made an. account of the personal estate and of the debts of the deceased, and that such estate was insufficient to pay his debts.” And it was objected there that it did not appear, except by the recital in the order, that the personal property had been applied to the payment of debts, but the objection was overruled. The ruling in this case was approved of in that of Jackson v. Irwin (10 Wend., 441); in Jackson v. Crawford (supra); and in this court, in Sheldon v. Wright (1 Seld., 497). The first objection, therefore, is wholly untenable. The Revised Statutes do not require, as the Revised Laws did, that the petition should be accompanied with an account of the personal estate of the intestate, or an account of his debts, nor does either require an account of the names of Ms creditors or of the consideration of the debts against him. Neither do the Revised Statutes require that the petition should contain an account of the personal estate of the intestate, or of the debts against him, or of the names of his creditors, or of the consideration of the debts due by him. The particulars required by section 2 of the statute already referred to, viz., that it shall show the amount of the personal property of the intestate, the application thereof, and the debts outstanding as far as could be ascertained, it is believed that it has already been shown, are stated with sufficient certainty.

The onus of proving the matters stated in the second, third, fourth, fifth, sixth, seventh and eighth objections, since the passage of the act of March 23, 1850 (Laws of 1850, ch. 82, 117), rested clearly upon the party seeking to impeach those proceedings, and the sale and conveyance made in pursuance of them.

By the provisions of section first of- that act, all sales made by order of the surrogate, of the real estate of testators or in-testates, for the payment of their debts, are to be deemed and held to be made by a court having original general jurisdiction ; and the said provisions were to apply as well to sales theretofore as thereafter to be made. TMs act but declares that surrogates’* courts, acting in the ordering of such sales, are to be deemed courts of general jurisdiction, and it follows that all intendments, as to the regularity of their proceedings, and their jurisdiction in the premises, are to be the same as if they were courts of original general jurisdiction. The cases of The Syracuse City Bank v. Davis (16 Barb., 190), and of Chandler v. Northrop (24 id., 129), and the cases referred to in the opinions therein, fully sustain, in my judgment, the constitutionality of this law and its application to the present case. This statute made it incumbent upon the plaintiffs to show affirmatively the several matters, which they allege the defendant had not shown by sufficient evidence to exist, and ■ until these matters thus distinctly appear, the regularity of the proceedings will be assumed. Several of these objections are hypothetical and not warranted by .any facts appearing in the case. There can be no doubt, I think, that the surrogate properly received the affidavit of Mack and Tourtellot on the return of the order to show cause why the real estate should not be sold. Upon such hearing, the statute contemplates an attendance of parties interested, an examination of witnesses, and if a question of fact shall arise, an issue may be awarded to try the same. The surrogate, upon the hearing, is to adjudge and determine the debts against the intestate, what are valid and subsisting. Before he can make an order for the sale of the real estate, he is to be satisfied, upon due examination, that the administrators making the application have complied with the provisions of law: that the debts, for the satisfying of which it is proposed to sell said real estate, are justly due and owing; and lastly, that the personal estate of the deceased is insufficient for the payment of such debts, and that the whole of such estate, which could have been applied, to the payment of such debts, has been so applied. Upon such examination, the administrators were competent and proper witnesses, and the matters so testified to by them were properly reduced to writing and remain of record in the surrogate’s office. It is of no importance that he did not deem it necessary to examine the third administrator. He was to be satisfied, and if the testimony taken satisfied his mind, his judgment thereon cannot,' in this action, be reviewed. He acted judicially, and the only remedy was to appeal, if he acted erroneously. (Jenkins v. Robinson, and Jackson v. Crawfords, supra.)

I am unable to arrive at the conclusion that the defendant’s case is strengthened by the judgment in the Supreme Court in favor of these administrators against these present plaintiffs. The defendant in this action was not a party to that suit, and in no way concluded or affected by anything done ' therein. He is not estopped from setting up any rights he might otherwise have by any adjudication therein, and consequently he cannot claim that the defendants therein, as between him and .them, are estopped from setting up or claiming any of their rights, by reason of anything adjudicated in that suit. The defendant has parted with no property, or done any act or thing, by reason of or on the faith of anything done or omitted to be done, by these present defendants in that action. The essential element of an estoppel is therefore wanting. Again, the plaintiffs in that action, the administrators, had no interest in that controversy and had no right to call upon the defendants therein, for the relief prayed for. Stephen B. Munn, individually, might perhaps have had a cause of action to restrain Mr. and Mrs. Forbes from setting up any claim to said premises, on the' ground that he had warranted the title thereto, and that the consideration paid for the same had been applied to the discharge of the debts of their ancestor, and that he was still largely indebted to him. An equity might perhaps thus have been worked out on behalf of Stephen B. Munn, individually, but certainly none existed on the part or on behalf of the administrators. The judgment record in that action should, therefore, have been excluded. It was res inter alios acta.

There remains to be considered the offer made by the plaintiffs to show that William H. Munn bid off the premises in question as the agent, and for the benefit, of the said Stephen B. Munn, and which evidence was excluded.

It is now well settled in this State, that a guardian, trustee or other person, standing in the relation of a fiduciary capacity, cannot deal with or purchase the property, in reference to which he holds that relation. (Gardner v. Ogden, 22 N. Y., 327.) The usual and ordinary right and remedy of the cestui que trust is, to affirm the sale and claim its enhanced value, or to hold the fraudulent trustee to the sale. He has his election within a reasonable time to do either. The sale is not therefore void, but voidable only at the election of the cestui que trust. But in reference to sales of the character now under consideration, we have an emphatic and clear expression of the will of the legislature, and which I see no way of overcoming in the present case. (2 R. S., p. 104, § 27.) This section declares, in reference to sales by executors or administrators of the real estate of testators or intestates, directed to be made by a surrogate for the payment of their debts, that such executors or administrators making the sale shall not directly or indirectly purchase, ór be interested in the purchase of, any part of the real estate so sold. And it further declares that all sales made contrary to the provisions of that section shall be void. It was not necessary to bring the case within the mischiefs intended to be presented by this prohibition, that all of the administrators should directly or indirectly purchase at the sale, or be interested in- the purchase. It is equally within the statute, if either of the administrators making the sale should purchase, or be interested therein. A moment’s consideration will show the importance of maintaining, in its integrity, the inhibitiol- to purchase, or be interested in the purchase, contained in this section, on those who initiate and conduct sales of this character, or any of them. The owner of the estate has departed, and others represent him, who are charged to protect those interested in his estate, as creditors or heirs.

In the case of executors, he has selected those in whom he confides, and upon whom the law imposes a duty- of fidelity and impartiality. In the event of administrators being appointed, certain classes from which the selection is to be made are designated by law, and when selected the same duty is imposed upon them. The characters of purchaser and seller are utterly incompatible in such cases, and the law has wisely interposed its mandate, that they, shall not co-exist. No man should thus be tempted, or be permitted thus to be tempted. Infants are peculiarly the objects of the watchful care and protection of the courts, and they cannot permit a salutary provision of the statute,- especially made to secure their interests, to be disregarded. If an executor or administrator was permitted, directly or indirectly, to purchase at a sale, initiated and conducted and made by him, or to be interested in any such purchase, it is obvious that the temptations would be frequent to cause such sales to be made, and at inauspicious periods, and under circumstances when the lowest price would be obtained therefor, in violation of his duty, would be strong, and the law has imposed a barrier to their existence. The characters of seller and buyer are in direct conflict, and cannot be exercised by the same person. “Mnptor emit quam mínimo potest, venditor vendit quam maximo potest.” The statute has, therefore, said that all such sales are void, and consequently no title passed thereby. The title remains in the original owners, as though the sale had never been made, and in this case, on the decease of the ancestor, his real estate, sold and purchased in violation of the statute, descended to his heirs-at-law, of whom the present plaintiff, Mrs. Forbes, is one. Her title to one undivided half of said premises has not been legally divested. It descended to her, subject to the right to sell the same for the payment of the debts of her ancestor. And a sale lawfully made would have divested her title, and vested the same in the purchaser at such sale. If the facts sought to be proved by the offer made at the trial and now under consideration were established, the said sale was void, and no title passed thereby. It seems to me, therefore, clear that if these facts be established, the administrator, Stephen B. Munn, acquired no title to the premises in question, by reason of the sale, initiated, conducted and made by him, in conjunction with his co-administrators, and that consequently he had none to convey, and the wife of the plaintiff has the same title to the premises as she would have had if said sale had never been attempted to be made." I think the learned justice erred in excluding this evidence, and that there should be a new trial had, with costs to abide the event.

All the judges were for reversal, on the ground stated as the conclusion of the opinion; Denio, Ch. J., and Smith, J., expressed concurrence with the opinion in respect to the act of 1850; Sutherland and Allen, Js., were of a contrary opinion; and the other judges did not express themselves upon that point.

Judgment reversed, and new trial ordered.