Atkins v. Kinnan

By the Court, Cowen, J. After disposing of some minor questions, the judge proceeded as follows : Thus these verdicts are brought to depend exclusively on the form of the proceedings before the surrogate, and the deeds from the executor; If these were, on their face valid, as being a compliance with the statute, 1 R. L. of 1801, p. 223, 4, § 20 and 21, the title of all the defendants was perfect, under the finding of the jury upon the question of domicil. If not, the plaintiffs are entitled to recover, unless there be other impediments which can have no operation in disposing of these cases. By § 20 of the statutes above referred to, the executor was bound to make a just and true account of the personal estate and debts, as far as he could discover the same, and deliver it} with a proper petition, to the surrogate, who might, on due inquiry, order a sale of real estate, if he should find the personal estate insufficient to pay the debts. It was mentioned in argument that the account, when presented, was not sworn to by the executor; but no such objection being made on the trial, it cannot be entertained here. It is clear that we cannot, in this collateral proceeding, inquire whether, in fact, there were any debts due over and above the — 246 — personal estate. The petition and account of the debts and estate were the papers to confer jurisdiction under the statute; Ford v. Walsworth, 15 Wendell, 449; and if they were sufficient,' as showing a balance against the estate in proper form, the adjudication of the surrogate that a balance was due, followed by his order of sale, must be received as conclusive. Jackson, ex dem. Jenkins, v. Robinson, 4 Wendell, 436. Such a proceeding cannot, ordinarily, be impeached, in a collateral proceeding, even for fraud, where all persons interested are properly made parties according to the statute. The doctrine is quite familiar in examining the proceedings of all courts. Per Sergeant J. in Winner’s appeal, 1 Whart. R. 105, 106. M’Fadden v. Geddis, 17 Serg. & Rawle, 336, and cases there cited. The difference lies between a want of jurisdiction and error. In the former case, the whole is coram non judice and void : in the latter, the proceeding can not be impugned in a collateral action, even though it be erroneous on its face, Jackson, ex dem. M’Fail, v. Crawfords, 12 Wendell, 533; and even though it relate to a fact which in a former stage of the proceeding might have been essential to confer jurisdiction. Per Shaw, C. J. in Betts v. Bagley, 12 Pick. 582. It is examinable only on a direct proceeding, as by an appeal, or a proceeding in nature of an appeal; and where there is no remedy of that kind, it concludes forever. The whole case is then narrowed down to two of the points made by the plaintiffs’ counsel: 1. Whether the account of debts and personal property filed with the surrogate were sufficient to give him jurisdiction, and 2. Whether the deed, in omitting to state his order at large, is therefore void. The first objection was levelled particularly against the account of debts due from the estate. In all three of the causes, it was said, neither person nor amount, nor consideration are mentioned as to some of the debts, and in the action against Cay wood, it was added, what in fact is equally applicable to all of them, that some of the debts arose after the testator’s death. The statute 1 R. L. of 1801, 323, § 20, should doubtless be so construed as to facilitate the detection of fraud in simulating — 247 — debts, thus wrongfully disinheriting heirs or divesting the claims of devisees. In that view, it may be too strong to say that a lumping of the debts throughout, as is done here in respect to part, would be a compliance with the act. It would not much resemble an account in any sense of the word. But it is not necessary to say definitively, whether that would be a fatal defect, nor whether funeral expenses are a debt of the testator within the meaning of the act; for there can be no doubt that the account of the debt of $500 stated to have been due to Longcon & Caywood of Ulysses, by way of penalty in a lease, was sufficiently specific. This it is said must of necessity be more than the real debt, because it is stated as a penalty. That is not so. We ought to intend rather that the damages for the breach equalled the penalty, or that this was in the nature of liquidated damages. Again, if the whole penalty were wrongfully allowed, the objection does not relate to jurisdiction. The court having power to award that any balance was due from the estate, excess was error only, and must here, notwithstanding, be taken for the true sum. That item will, of itself, sustain the proceedings, even if we reject all the others as nullities. 2. In respect to the form of the deed; .the statute, 1 R. L. by Kent & Radcliff, 1801, p. 324, § 21, requires that the sale shall be made and conveyances for the same executed by the executors, &c., applying for the order ; “ and the conveyances for the same shall set forth such order at large; and shall be valid, &c., against the heirs and devisees of such testator or intestate, and all claiming by, from or under them.” In strict prudence, even at common law, and independent of any statutory injunction, such a deed should recite the authority under which the executor acted; for, though such a recital would not, as against persons other than the grantor or those claiming under him, be evidence of the order, it would, even in respect to strangers, be proof to connect the grantor with the order, as a cotemp oraneous declaration that the agent was acting as such, and not in his own right. The omission of such a re — 248 — cital would put the party claiming under the deed, to show the fact by proof aliunde, as he must in all cases against the heir or devisee prove the original order. Probably there would not, in general, be much difficulty in establishing the connexion which would be intended, on its appearing that the grantor had no pretence of title in his own right, for the law refers the intention to the lawful, rather than the wrongful capacity. Per Holt, C. J. in Parker v. Kett, 1 Salk. 95, and 1 Ld. Raym. 658. Yet all this, is mainly for the benefit of the grantee. What advantage the heir or devisee or creditors can derive from the recital in a deed which is to go into the hands of an adverse claimant, the recital too of an order which is matter of record, it is perhaps difficult to conceive. The deeds refer to the order, and one of them mentions its date in such a way, that any one can find it in all its relations and dependencies at the fountain head ; and if we could feel ourselves warranted in the belief that no benefit whatever was intended by the recital to any except the grantee and those claiming under him, I, for one, should then have no difficulty in saying, that it is not for the plaintiffs to raise the objection. Quilibet potest renunciare juri pro se introducto. 2 Inst. 183. But the matter has not been thus regarded by the legislature. It is true, as was said on the argument, that there is no express adjudication in this court, declaring the want of such a recital fatal to the conveyance. The farthest we have gone is in Rea v. M’Eachron, 13 Wendell, 465, which avoids it for actual want of the surrogate’s order of confirmation. A late statute has, however, gone farther, 2 R. S. 2d ed. 48, § 61 to 65 inclusive. These sections provide that when the conveyance omits to set forth at large the order of the surrogate, either in case of a past or future sale, the chancellor shall make such order confirming the sale and conveyance as he shall deem equitable, on its appearance to him that the sale was made fairly and in good faith. The omission is put on the same footing in point of materiality, as if, on a sale under a previous statute, now repealed, some discreet person had not concurred in the conveyance with the — 249 — personal representative. The statutes bearing upon this question are cited, and their material provisions noticed, by Sutherland, J. in Rea v. M’Eachron. I collect from them, that the legislature regard the recital in question as beneficial to the heirs, devisees or creditors; as meaning that its omission shall not be overlooked in a court of law ; nor the nonreciting conveyance be made available except on investigation and an order of confirmation by the court of chancery. This is certainly right, if there could be made out a probable benefit in the recital, under any supposable circumstances, to heirs, devisees or creditors. Doubtless the legislature must have proceeded on this idea ; and, if so, it is not for us to deny that they were correct. At any rate, by pronouncing the conveyance good, without the requisite being supplied by the chancellor, we should supersede his jurisdiction ; and in that respect, at least, our decision would conflict with the statutory provisions. See Ex parte Hemiup, 2 Paige, 316. 3 id. 305. Where certain steps are authorized by statute in derogation of the common law, by which the title of one is to be divested and transferred to another, every requisite having the semblance of benefit to the former must be strictly complied with. This is abundantly exemplified in the cases upon sales for United States direct taxes. Jackson, ex dem. Cook v. Shepard, 7 Cowen, 88, and cases there cited. So where the interest of another is to be affected by an order which a statute says shall be drawn up in certain words, giving the form in a schedule, this must be exactly pursued, or the order is void Davison v. Gill, 1 East, 64. The case cited was of a proceeding by justices, to stop an old foot way and substitute a new one, the statute under which they acted requiring " that the forms of proceedings set forth in the schedule annexed, shall be used on all occasions, with such additions or variations only as may be necessary to adapt them to the particular exigencies of the case.” Lord Kenyon, C. J., observed, “ I cannot therefore say that these words are merely directory. Power is given to the magistrate to take away, on certain conditions, a right which the public before enjoyed r and this is to be done in a certain — 250 — prescribed form, with such additions and variations only as the locality of the description may require. Now here there is a material variance in the order from the form prescribed ; for it does not set forth the length and breadth of the new path set out in lieu of the old one.” The court, therefore, held the order void ; and so the public still entitled to the use of the old path through the plaintiff’s land. And see Plowd. Comm. 206; 1 Kent’s Comm. 466, 3d ed., note d. It is said in Plowden, “ Every statute that limits a thing to be done in a particular form, although it be done in the affirmative, includes in itself a negative, viz. that it shall not be done otherwise.” And this is clearly so of all statutes which ip affirmative words appoint or limit an order or form in things which were not known to the common law. Plowd. Comm. 113. In the case at bar, a title was to be divested and transferred to another, in a new form, and under a naked power conferred by statute. After providing for the surrogate’s order of sale, 1 R. L. of 1801, 323, 4, § 20, the next section says the conveyance shall set forth his order at large. That certainly was not done within the meaning of the statute, either in the deed to Philip Tunison or Caywood. The order recited all the previous proceedings: the account and petition for sale by the executor, naming him, the order to shew cause, its publication, the hearing of the proofs, the adjudication that the estate was in debt and its personal assets insufficient having been all applied; and a balance of 500 dollars beside costs yet remaining due. The order then directs the sale, defining the two parcels of 50 acres each to be taken from the 250 acres. The deed to Philip Tunison comes nearest a recital of this final order, and that is simply that the surrogate had by his order of such a date directed such a parcel of 50 acres to be sold, describing it as in the order. The deed to Caywood does not even refer to the date, nor recite the description. The best is a recital of the order but in part. The adjudication showing the amount due after the exhaustion of the personal assets, was important information both to the devisees and to creditors. It was in fact a part of the same order, indicating the amount — 251 — •of money to be raised by the sale; and why was not that material as well as the mere description of the land 1 The recital of the previous proceedings was also very well; and in practice, we believe, usually makes a part of the order of sale. The statute demanding the order at large, we cannot say it is complied with so long as the deed omits to recite the whole as it stands upon record. We do not say it should be literally recited ; but it is impossible to say that a document is set forth at large unless every part is substantially presented. That we think is the least that the statute calls for. The conveyances from the executor were, therefore, void, and must continue so unless they shall he rectified on a proper application to the chancellor. Upon the ground of the defective recital alone, new trials are granted in all three of the causes.