O'Donoghue v. Boies

The lands in controversy in this action are a part of those devised by the will of Michael O’Donoghue, and so far as any question presented by this case is concerned, such will may be said to have provided as follows: By the eighth clause thereof, the testator.devised all'of his real estate to his executors, in trust, to sell the same, to divide the proceeds into eight equal shares, to invest such shares, and to apply the interest and income

It is claimed that the ninth clause of the will under consideration gives to each child, upon arriving at majority, the right to have his share of the estate, and that, therefore, in the event that equal partition could not be made by the executors without a sale, a sale was intended and authorized by the testator. In view of the fact that each child, on his arriving at majority, became vested with his undivided share of the lands so devised in the event that the executors did not, or could not, fairly allot it to him in severalty, and that each thus received the full benefit of all that was given by the will, and in view of the further fact that the testator expressly revoked by codicil the power of sale previously given, we cannot adopt the construction contended for. We are not required or permitted to seek the testator’s intent by inference or implication in the face of a purpose so plainly expressed in the codicil before us. The direction and evident purpose of the testator was that none of the shares of his children in such real estate should be sold during his or her minority. Some ten years after the probate of such will, one of the executors, a son of the testator, commenced an action for the partition or sale of all the lands so devised, and for a division of the proceeds among the beneficiaries named in said will. The plaintiff’s in the present action, who were then infants, were made parties defendant in such action, and their mother, Ann O’Donoghue, the other executor, was appointed their guardian ad litem. No defense was made, and the action resulted in a judgment directing the sale of all the testator’s real estate. The lands in question were sold under such judgment by a referee appointed therein, and were bid off by Ann O’Donoghue, the said guardian of such infants$

At the time the premises were sold in the partition action, the Revised Statutes that:

“No real estate (of an infant) or term for years shall be sold, leased, or disposed of in any manner against the provisions of any last will, or of any conveyance by which such estate or term was devised or granted to "such infant.”

The plaintiff’s claim that, by reason of such statute, the court was without jurisdiction to render a judgment directing the sale of the property in question; that hence all proceedings under such judgment were utterly void; and that their interests in the premises were not affected by the referee’s conveyance to Ann O’Donoghue. Conceding, as we must- that the sale under that judgment was in-plain opposition to the provisions of Michael O’Douoghue’s last will, this claim of the plaintiff’s seems to be sustained by the decisions in this state. If the court was without jurisdiction to order such sale, such order was a nullity, and could have no effect whatever upon the plaintiffs’ title. Craig v. Town of Andes, 93 N. Y. 405 , 410; In re Walker, 136 N. Y. 20 , 29; 48 St. Rep. 893 . That its proceedings were not merely irregular, but were utterly without jurisdiction, is held in Rogers. v. Hill, 415. It was there held that a sale of an infant’s real estate, by order of the court of chancery, contrary to the provisions of a devise, was utterly void, and'that no title passed thereunder to the purchaser. That was a case .where the proceedings to sell were under the statute relative to the sale of infants’ real estate, when necessary for their support and maintenance; but that the rule is equally applicable to a sale in an action for partition is held in Muller v. Struppman, 6 Abb. N. C. 343 . The reason is the same in each case. In neither proceeding has the court any authority to sell, except bjr force of the statute (Thompson v. Hardman, 6 Johns. Ch. 436 ; 17 Am. & Eng. Enc. Law, 785; 3 Pom. Eq. Jur. § 1390); and in those instances where the statute forbids it the authority is utterly wanting.

The plaintiffs further claim that there was a trust expressed in the will of Michael O’Donoghue in their favor during their minority, and that the statute declares that every sale, conveyance, or other act of the trustee in contravention of such a trust shall be absolutely void (4 Rev. St. [8th Ed.] p. 2439, § 65) ; hence, that the acts of their trustees, the one in instituting the partition action, and the other as guardian ad litem of. the infants, in allowing judgment of partition and sale to be taken therein by default, were in direct violation of this statute; and that the sale so procured

At the time of the sale in the partition action it was provided by statute as follows:

“Nor shall any guardian of any infant party in such (partition) suit, purchase, or be interested in the purchase of, any lands, being tíre subject of such suit, except for the benefit or in behalf of such infant; and all sales contrary to the provisions of this section shall be void.” 2 Rev. St. pt. 3 p. 326, c. 5, tit. 3 § 58.

On the trial of this action, although it appeared from the record that Ann O’Donoghue, the guardian ad litem of these infants in the partition action purchased the premises in her own name, entered into possession of them as the owner, borrowed the sum of $1,500 about six years thereafter, and executed a mortgage upon them to. secure its payment, and subsequently allowed such mortgage to be foreclosed and the premises to be sold, yet it was held that such sale to her was not void, because the plaintiffs had failed to show that she did not purchase them for their benefit. In this ruling, we think, there was error. All purchases made by a guardian, in such an action, of infants’ lands being sold therein, are void unless made for their benefit; and where the conveyance is made to the guardian in her own name, and in form for herself individually, and there is nothing in the record nor in the conveyance to indicate that she holds the property in any other person’s interest than her own, the presumption would seem to be that the transaction is such as upon its face it appears to be. At least, if she desires to hold such premises from her wards, the burden is upon her to show that the purchase was not such an one as the statute condemns. It is a general rule of evidence that, where an act is prohibited with an exception, the burden rests on the party claiming the exception to bring himself within it. Fleming v. People, 27 N. Y. 329 , 334; People v. Weldon, 111 N. Y. 569 ; 20 St. Rep. 112 ; Knapp v. O’Neill, 46 Hun, 317 , 319. The fact that an order was entered in the partition action confirming such sale did not strengthen it, Gallatian v. Cunningham, 8 Cow. 375 , 375; Terwilliger v. Brown, 44 N. Y. 237 , 243; and, inasmuch as the guardian ad 1 item’s purchase was made void by statute, delay on the part of these plaintiffs in bringing proceedings to recover possession of the premises does not affect their rights. The sale is made absolutely void by the statute, and therefore the title remained wholly in the infants, even as against subsequent bona fide purchasers for value. See Forbes v. Halsey, 26 N. Y. 53 . Moreover, the defendant can claim nothing as a bona fide purchaser, as the record, through which his title is made, discloses all the facts. The title to the premises in question vested in these plaintiffs upon their arriving at the age of twenty-one years, Wat

Judgment reversed, and a new trial granted, with costs to abide the event.

HARDIN, P. J., concurs: MBRWIN, J., not voting.