Cole v. . Gourlay

Miller, J. The defendants’ title is derived by virtue Of certain proceedings to sell the real estate of the infant children of Joseph Cole deceased. These proceedings were instituted upon the theory that the deceased died without leaving a last will and testament, and a deed was executed to one Sherman in 1841, Avho took possession under the same, and occupied until 1846, Avhen he conveyed to William Kendrick, under Avhom the defendants have occupied the premises, claiming adversely to the plaintiffs for more than twenty years. The plaintiffs claim that the title to the land was not divested by the proceedings and the conveyance in pursuance thereof, for the reason that Joseph Cole died leaving a last Avill and testament by which he devised the lands in question to his AvidoAV for life and to plaintiffs after the death of their mother, and hence the infants wore not seized of or entitled to any interest in the land sought to be sold within tho provision of 2 Revised Statutes, 194, section 170; and that tho sale Avas made in violation of section 176, 2 Revised Statutes, 195, which declares that no real estate shall ho sold etc., “in any manner against the provisions of any last will, or of any conveyance, by which such estate or term Avas devised to such infant.” If this will was effective at the time of the sale to Sherman, then no title passed, under the proceedings. The proof shows that it Avas in possession of the widow after the decease of the testator in 1836 ; that it was taken by the plaintiff, William D. Cole, from his mother’s trunk, in the early paffc of the year 1841, and retained concealed about his person until presented to the surrogate for probate in 1855. Tho defendants insist that the subsequent production and proof of the Avill in no Avay affected the title of tho purchaser, und'esr the proceedings for a salo; that they hold under a purchase made in entire good faith and for a valuable consideration, and therefore tho Avill is inoperative ; and that they acquired *532 a good title, which is fully protected by the statute, which provides that “the title of a purchaser, in good faith and for a valuable consideration, from the heirs-at-law of any person who shall have died seized of real estate, shall not be defeated or impaired by virtue of any devise made by such person of the real estate so purchased, unless the will or codicil containing such devise shall have been duly proved as a will of real estate, and recorded in the office of the surrogate having jurisdiction, or of the register of the Court of Chancery, where the jurisdiction shall belong to that court, within four years after the death of the testator, except: 1. Where the devisee shall have been within the age of twenty-one years, or insane, or imprisoned, or a married women, or out of the State at the time of the death of such testator, or. 2. Where it shall appear that the will or codicil containing such devise shall have been concealed by the heirs of such testator, or some one of them. In which several cases, the limitation contained in this section shall not commence until after the expiration of one year from the time when such disability shall have been removed, or such will or codicil shall have been delivered to the devisee or his representative, or to the proper surrogate: ” (1 R. S., 749, § 3.) It appears from the finding of the judge upon the trial that neither Sherman nor Kendrick had any knowledge of the will until after the purchase made by them respectively ; and the proof shows that such purchases were made for a valuable consideration and in good faith. There is some evidence of the declarations of Sherman, after he had purchased and while he owned the premises, to the effect that fie had knowledge of the existence of the will ; but this is ixot material, as it is not proved that ho had knowledge or any reason to suppose that there was a will prior to such purchase. If Sherman was a bona fide purchaser for a valuable consideration, his title as such inured to the benefit of Kendrick, and he is entitled to protection within the authorities, even if he had notice of the will and did not pay a valuable consideration: (Wood v. Chapin, 13 N. Y., 509; *533 Webster v. Van Steenbergh, 46 Barb., 211.) It is not to be' denied, as the evidence stands, that Sherman and Kendrick both purchased without knowledge that the will existed, and the defendants hold possession under Kendrick as tenant. As the grantees named were bona fide purchasers of the heirs for a valuable consideration, and the will was not proved and recorded within four years after the testator’s dearth, they are within the precise terms and limitation of the stat-! ute, unless one or more of the exceptions named in the statute applies and prevents its operation. The only exceptions' which have any bearing are those which relate, first, to the' minority of the devisee at the time of the testator’s death-;' and second, where it appears that the will containing the devisa has been concealed by the heirs of the testator, o* some one of them. As to the former, the plaintiffs being' minors at the time of the testator’s death, the limitation named in the statute would only begin to run, as therein' provided, one year after the minors respectively arrived at tho ago of twenty-one years. One of them became of age in 1844, and the other in 1847. If one year be added to tho limitation of four years, making five years after the removal of the disability from the youngest one of the plaintiffs, the time would expire in 1852. The will not being proved and recorded until 1855, over five years after the limitation, the title acquired under the proceedings to sell!' was not affected, and the will was of no force as to the pur-' chaser and those claiming under him, assuming, as we think should be done, and as was manifestly the case, that the' purchase was made in good faith and for a valuable consider-" ation. In regard to the second exception, we are of the' opinion that it has no application to the facts presented in the case at bar ; but it relates to a concealment which leaves the devisees in ignorance of their rights under the will, and-' deprives them of knowledge of its existence. Certainly the statute cannot relate to a case where the devisees or some of them, have knowledge or possession of the will, and it is taken from the possession of one by another clandestinely *534 and secreted for a great length of timo, or perhaps destroyed. The will Avas delivered to the widow, who was executrix and one of the devisees having a life estate, and remained in her possession for a number of years. It is fairly to bo inferred that she had knoAAdcdge of the character of the instrument, and there can he no question that the son Avho purloined and coiiccalcd it about his person for fifteen years had such kilowledo-c. The case Avas not one of concealment, Avithin the statute, but of a Avill >vhich Avas stolen from tho person who was tho proper custodian. Under such circumstances, ample relief exists at laAV against the wrong-doer, and the provision considered has no application: (2 R. S. [Edm. ed.], 69, § 63 ; Harris v. Harris, 26 N. Y., 433 ; Schultz v. Schultz, 35 id., 653.) Even if the statute could ho interpreted - as covering such a case, William certainly would be concluded by the limitation as a devisee in possession of the will for tho period of fifteen years before it was presented for probate and over five years after he became of ago. But as to both plaintiffs, under these circumstances tho will could not affect the title acquired by a bona fide purchaser for value from- the heirs of the testator. As we have seen, a case of concealment was not made out, and hence tho plaintiffs are not Avithin the exception last considered. ■ The result must be that the limitation contained in the statute is a defence to the claim of the plaintiffs under the testator's Avill, and the right of the defendants cannot be affected thereby, provided title was lawfully acquired by Sherman under the proceedings in chancery for the sale of the "land. Wo think that the conveyance to him transferred the interest of the plaintiffs in the premises. It is insisted that the plaintiffs' title was not divested, and several grounds are urged against the validity of the proceedings. So far as the Avill is concerned, it is already apparent that it cannot affect the rights of the purchaser ; and in this respect he must be regarded as having acquired title the samo as if the will had no existence. It is said, however, that the court had no jurisdiction *535 either of the person or the subject-matter, as the statute applies only to an infant, and the plaintiffs never did apply, and the application was made by one Joseph Arnold,, who applied in his own name, and not in the name of the infant. The petition is by Joseph Arnold, next friend of the infants, and stated that they had an interest in the premises. This sufficiently shows that the application was for and on their behalf, by a party entitled to represent them, and was in conformity with the provisions of the statute. (2 R. S., 194, §§ 170, 175.) It is a sufficient answer to the objection that the proceedings were irregular because the plaintiffs did not join it, that the statute provides that application may be made by the next friend or guardian, and does not require that the infant- should unite in the petition with such next friend or guardian. The rule of the court requiring this to be done if the infant is over fourteen years of age, is a mere regulation as to the practice which the court has the power to waive, and docs not affect the jurisdiction of the court where there has been a substantial compliance with the law. It is said there were no corroborating affidavits, as ivas also required by a rule of the court. This also may be dispensed with by the court itself. No particular form is required, and it is sufficient to confer jurisdiction on the court if the proceedings are in conformity with the general purposes of the statute. A mere departure from a rule of the court docs not impair the validity of the proceedings. (O'Reilly v. King, 28 How. Pr., 408, 411, 413.) The last remarks will also apply to the objection that the petition was not by the general guardian, and does not show that ho had any. The master’s report, as contained in 1ho record, purports to be signed by him, and the deed was not, we think, defective because it was signed by Joseph Arnold. The order of the court adjudged that Joseph Arnold, the special guardian, should execute a sufficient conveyance of the interest of the infants, naming them. It did not require that it should be in their names, although such names appear in the deed and he conveyed as their special *536 guardián. The deed was in compliance with tho direction of the court and was sufficient. The authorities cited by the appellant are not adverse to this interpretation. Other points are presented, but the views expressed dispose of the casa, and a consideration of them is not required. The judgment should be affirmed. All concur. Judgment affirmed.