Hart v. Duffy

The Surrogate. The decree entered on the final accounting in 1868, could only be opened, I apprehend, by means of a petition filed for that purpose, alleging some proper ground therefor. The petition in this matter makes no allusion, either in its allegations, or prayer, to that decree, and was, perhaps, prepared in ignorance of its existence. The only ground upon which a Surrogate has power to open such decrees, is where they were taken by default and to the injury of the petitioner, or where there is an allegation of mistake, accident or error. (Rew. v. Hastings, 1 Barb. Ch. R. 452 ; Dobke v. McLaren, 41 Barb. 491; Sipperly v. Baucus, 24 N. Y., 46) And the grounds should be alleged in the petition. This court ought, therefore, to dismiss the application, but the petitioner claims that the executor should be compelled to account for the value of the land purchased by one of them, and also for other funds realized from the sale of other portions of the realty which were [154] used to pay mortgages upon other lands specifically devised. I propose to dispose of these questions here. It is well established by authority, and may be regarded as an elementary principle, that a purchase of lands by executors which they are ordered or authorized by the will to sell, enures to the benefit of the estate, and that any one interested may enforce his rights in regard to them as if they were still unsold (4 Kents Comm. 438 and cases cited.) Is the petitioner in this matter in a position to avail himself of this principle ? He undoubtedly stands in the place of Edward Duffy, and is entitled only to his rights as they existed at the date of the judgment, or, at most, of the accruing of the claim on which the judgment is based. If Edward were the petitioner in this matter, I apprehend he would be precluded from making any such claim, because he would be estopped by his knowledge of, and consent given to, the sale to the executor. This act was impliedly and expressly sanctioned by him, and he, with full knowledge, stood quietly by and permitted the executor to go on and improve the lands so purchased by him, and even to sell a portion of them to other parties. It seems to me a clear case of estoppel in pais. In such a case, Chancellor Kent (supra) says “ the cestui qui trust is entitled, as of course at his election, to acquiesce in the sale, or to have the property reexposed to sale.” In the case of Dongrey v. Topping (4 Paige, 94), it was held that where property was sold by order of a Surrogate, and the terms of sale were that a clear and satisfactory title should be given, and the administratrix (the widow) was cognizant of the terms, was present at the sale and joined in the conveyance, she was estopped from claiming dower as against the purchaser. Ignorance of rights on the part of the person making the representations, or acquiescing, will not preclude the application of the estoppel. (9 [155] Barn. & Cress. 452; 1 Story’s Eq. Jur. § 386; Kingsley v. Vernon, 4 Sandf., 361.) The same principle, I think, is applicable to the use of the funds of the estate in the extinguishment of mortgages upon lands specifically devised. Again, Edward Duffy, having a knowledge of all the facts at the time they occurred, would be concluded by his loches from opening the account, were it otherwise a proper case for it. The delay intervening is nearly six years, and the court will not interpose where a party has left his rights in a state of repose for so long a period. (Rogers v. Rogers, 1 Paige, 188; Sipperly v. Baucus, supra.) The legal title to the lands in question is in John D uffy. He and his co-executor conveyed them, by virtue of a power contained in the will, to Martin Dowling, who subsequently conveyed them to John Duffy. It seems to me that the petitioner must apply to some other forum, if he desires to have those conveyances declared void so that the lien of his judgment may attach. Of course, I am not called upon here to pass upon any question affecting the rights of the infant legatee, named in the will. From the views above expressed, it follows that the proceeding must be dismissed. Ordered accordingly.