Fox v. Barton , 49 N.Y.S. 292 ( 1897 )

Follett, J.:

The defendants took no exceptions to the rulings admitting or excluding evidence on the trial, and the only question before this court arises on the exception taken by them to the direction of a verdict for the plaintiffs. The plaintiffs claim to recover possession" of this lot upon the ground that they are its owners in fee, either under the will executed April 15, 1867, by Henry Fox, or under the will executed by him December 27, 1866. The will of April 15, 1867, revoked all former wills made, and, if it is valid, the will executed December 27, 1866, was revoked and is invalid. It is an elementary rule that a plaintiff in an action of ejectment must succeed, if at all, on the strength of his own title, and that he can never succeed because of some weakness in the title of his adversary. Did the plaintiffs acquire title to the lot under the will of April 15, 1867? It is clear, I think, that, by force of the judgment of July 27, 1869, declaring the testator incompetent to devise realty, the plaintiffs in this action acquired no title to lot Xo. 18 by virtue of that will. Tinder the statutes of this State, the decree of the surrogate admitting to probate the will of Henry Fox, devising land, was not conclusive on the heirs of the testator, who could contest the validity of the devise by an action of ejectment, of partition (Laws of 1853, chap. 238, § 2), or by a special action brought to determine the validity of the devise. (Laws of 1853, chap. 238, § 1; Bowen v. Sweeney, 89 Hun, 359 ; affd., 154 N. Y. 780, and authorities cited.) In the action in the Supreme Court, which resulted in the judgment of, July 27, 1869, the widow, the heirs of the testator and all of his grandchildren, who were the only persons then in being who might by any possibility take under the will, were parties, and it seems to me that this judgment is a conclusive bar of the claim of these plaintiffs under that will.

It is contended in behalf of the plaintiffs that the judgment of July 27, 1869, is void as against these plaintiffs upon four grounds: (1) Because the guardian ad litem of the infant defendants therein was not appointed by the Supreme Court,- as required by section 2 of title 3 of chapter 5 of part 3 of the Revised Statutes, but by a justice of the Supreme Court; (2) because it does not appear that the guardian o,d litem gave a bond, as required by the 3d section of said title of the Revised Statutes (2 R. S. 317, §§ 2, 3); (3) because Eliza W. Fox, the executrix of the estate of Henry Fox, was not a party to the action in her representative capacity; (4) because the interests of the after-born grandchildren were not protected by the judgment pursuant to the Revised Statutes. (2 R. S. 326, § 55.) These objections do not affect the validity or conclusiveness of that judgment. By both wills, the realty is devised by three independent clauses; one clause devises lot Xo. 14; one clause lot Xo. 16, and another clause lot Xo. 18. The infant defendants in the Supreme Court action were the children of Henry C. Fox, and they took no interest in lot Xo. 18, the land in dispute, under either will.of their grandfather. In case Charles M. Fox, the devisee of lot No. 18, died without children, the remainder was to go to Henry C. Fox and George M. Fox, or to the survivor. No remainders were given in lot No. 18 to the children of Henry C. or- George M. Fox. Had Charles M. Fox died without children, Henry C. and George M. Fox would, under the will, have taken the remainder, had they not conveyed the land by a warranty deed, but their children would have taken nothing by force of the will. The remainders of the children of the testator were alienable, and the children of the sons of the testator did not take remainders in the devises to their uncles.

By the warranty deed executed July 27, 1869, by Henry 0. Fox,, George M. Fox and Charles M. Fox to Eliza W. Fox, the grantors are estopped, as against Eliza W. Fox and her grantees, from asserting title to any part of the premises, and in case either grantor dies without leaving children, the children of his brothers would be estopped from claiming title to the lot devised to the deceased uncle dying without children. (4 Kent’s Com. 98; Bawle Cov. chap. 11; 1 Jones B. P. 690 et seq. and cases cited; Gerard Titles [4th ed.], 530, and cases cited.) Consequently Maud Fox and Effie Fox, the infant defendants in the action under consideration, had no interest in lot No. 18 under the will when the judgment rvas rendered, nor have they at any time since had any interest therein, nor can they ever have an interest therein under the will of their grandfather, had it been held valid; and by the events which have happened, Henry C. Fox, their father, and George M. Fox, their uncle, have now no interest in lot No. 18, and never can have an interest therein under the will of their father because of their warranty deed and because Charles M. Fox died leaving children. The mere fact that persons having liens or interests in an estate partitioned are not parties, does not invalidate the judgment as to the parties to the action whose interests were adjudicated therein, and if Maud Fox and Effie Fox had not been made parties to the action, the judgment would nevertheless have been binding upon those who were parties to it.

Again, a judgment rendered against infants in an action relating to real estate is not void, but voidable only by reason of the fact that a guardian ad litem was not appointed. (Croghan v. Livingston, 17 N. Y. 218; Rogers v. McLean, 34 id. 536; McMurray v. McMurray, 66 id. 175; Clemens v. Clemens, 60 Barb. 366; affd., 37 N. Y. 59; Barnard v. Heydrick, 49 Barb. 62; Freem. Judg. [4th ed.] § 151.) For these reasons it is .quite immaterial whether their guardian ad litem was legally appointed or whether he gave a bond.

It is asserted in behalf of the plaintiffs that the executrix of Henry Fox was a necessary party in her representative capacity to the action in. the Supreme Court, and McArthur v. Scott (113 U. S. 340) is cited in support of this contention. That case arose over an estate consisting of lands and personal property, which the testator devised to his executors in trust, and directed that the income therefrom be paid to his children and grandchildren until the youngest grandchild, should he live to be twenty-one years of age, should arrive at that age, and then convey the remainder to his grandchildren in equal shares. The will was admitted to probate, and afterwards an action was brought by one of the children against the other children and all the grandchildren of the testator to annul the probate and set aside the will, and a decree was entered annulling the will and its probate. The executors were not made parties to the action. Grandchildren were afterwards born, and they brought an action to recover their interests in the estate under the will of their grandfather, and it was held that the executors and trustees, who held the legal title of the estate and were charged with the duty of protecting it, were necessary parties, and that the judgment annulling the will was not for this reason binding on the after-born grandchildren. The decision was based upon the ground that the title to the entire estate vested in the executors as trustees, and that their title could not be divested without their being made parties to the action. This case is so explained in Miller v. Texas & Pacific Railway (132 U. S. 662, 671), where the doctrine of virtual representation is expressly sanctioned. The case at bar is quite different. Hnder neither of the wills of Henry Fox did his executors take any interest in the three lots specifically devised to his sons, nor were they ever given power to sell those three lots, nor was the title to the remaining real estate of the testator, if he had any, devised to the executors under either will. They were simply given power to sell the real estate, if he had any, except said three lots. The executrix having no title to the real estate involved in the action, was not a necessary party thereto.

Is the judgment void because it did not protect the rights of the unborn grandchildren of the testator? Section 55 of title 3 of chapter 5 of part 3 of the Eevised Statutes (2 E. S. 326, § 55) provided:

“ § 55. If the persons entitled to any such estate in dower, by the curtesy, or for life be unknown, the court shall take order for the protection of the rights of such persons in the same manner, as far as may be, as if they were known and had appeared.”

The provisions of this section were incorporated into section 1572 of the Code of Civil Procedure, and the title of the Eevised Statutes relating to actions in partition was repealed by chapter 245 of the Laws of 1880. This provision is intended for the protection of unknown owners who have interests in the land partitioned, but has no application to unknown or after-born persons adjudged to have no interests in the lands partitioned. It was never intended that a judgment in partition should provide for the protection of unknown or after-born persons adjudged to have no interests in the lands partitioned. Under the Eevised Statutes legal titles could not be determined in an action of partition, though equitable titles could be. Legal titles could be determined only in an action at law, and, whenever it appeared in an action of partition that the legal title was in dispute, the action was dismissed or further proceedings suspended until the determination of the legal title. But, under chapter 238 of the Laws of 1853, the legality of devises of land, the legal title of persons claiming under a will, could be determined in an action of partition, and the section of the Revised Statutes above quoted has no application to after-born persons who are adjudged in an action brought under this statute not to have any interests in the lands involved in the action. As was said in Kent v. Church of St. Michael (136 N. Y. 10, 18) : “ There is no occasion for the court to make provision in the judgment for the persons not in esse, as they, by the adjudication of the court, never could have any interest in the land.”

Again, the plaintiffs in the case at bar were not born when the action in the Supreme Court was begun and terminated, and they were virtually represented in that action by their father, who was the plaintiff therein. (Nodine v. Greenfield, 7 Paige, 544; Cheesman v. Thorne, 1 Edw. Ch. 629; Kent v. Church of St. Michael, 136 N. Y. 10; Townshend v. Frommer, 125 id. 446; Giffard v. Hort, 1 Schoales & L. 386, 407; Miller v. Texas & Pacific Railway, 132 U. S. 662, 671; Story Eq. Pl. [10th ed.] § 144 et seq.; 1 Dan. Ch. Pl. & Pr. [6th Am. ed.] 228; Mitford & Tyler’s Pl. & Pr. 24, 264; Freem. Judg. [4th ed.] § 172.)

In case the apparent contingent interests (arising under a will) of persons born after a judgment adjudicating the invalidity of the will cannot be cut off by the doctrine of virtual or vicarious representation, a will creating such contingent interests in favor of unborn children could not be effectually adjudicated upon until all of the persons who may have future contingent interests thereunder shall be born. Such a rule would tie up the titles to real estate indefinitely and would be contrary to public policy. (Williams v. Bankhead, 19 Wall. 563, 571.)

The rule here declared is not in conflict with Monarque v. Monarque (80 N. Y. 320). In that case—an action of partition — the judgment appealed from toolc no notice of the rights of the after-born children, and it was held that, as the court below did not undertake to pass upon or protect their rights, its judgment did not bar or conclude such children. The power of the Supreme Court is distinctly recognized to decide in a proper action whether after-born children may or may not have rights, and, in case they have, to protect them by its judgment. Had it been alleged in that action that the testator’s devise was invalid, that issue might have been determined for or against after-born children ; not because they were parties, because they could not be actual parties, but upon the theory that they were virtually represented by the parties to the action. It was further held that the contingent interests of after-born children were not cut off by the judgment in Monarque v. Requa (53 How. Pr. 438), which was an action to construe the will, on the ground that the facts did not present a proper case for the construction of the will, and that though the adults in that action might, by their consent, confer jurisdiction upon the court, so as to bind themselves, they could not, by consent, confer jurisdiction over after-born children, and so conclude them.

Does the judgment cut down the will executed December 27, 1866 ? It will be conceded, that if this will had been referred to in the complaint and alleged to have been invalid, as it was not, the judgment would have been conclusive upon the question of its validity. Had the complaint been amended after the evidence was taken, by adding an appropriate allegation that this will was invalid, the judgment would have been conclusive. The widow and the three sons of Henry Fox, the testator, were parties to that action, and were of full age. The plaintiff Charles M. Fox was represented by his attorney who brought the action, and he entered the judgment which declares that his father, Henry Fox, was incapable, by reason of unsoundness of mind, to make the will bearing date April 16, 1867, and that, “ for upwards of two years next preceding the execution thereof, had been continuously, without any lucid interval, of unsound mind, and was, during all the time aforesaid, entirely devoid of all testamentary and devising capacity, and incapable, by reason thereof, of making a valid will or devise,” and that the real estate of which he died seized descended to his three sons, subject to the right of dower of his widow. Charles M. Fox estopped himself from questioning the judgment entered on his own motion. The guardian ad litem, the widow, Eliza W. Fox, George M. Fox and Henry C. Fox signed the following consent indorsed on the judgment:

“We consent that the within decree be granted and entered as within, formal notice of motion being waived.

“ Bated July 24, 1869.

“ RIPS ON & TERRY, Plaintiff’s Attorneys.

“ J. A. EASTMAN, Attorney for Infant Defendants.

“ELIZA W. FOX.

“GEORGE M. FOX.

“HENRY C. FOX.”

“A party to a civil action, who is of full age, may prosecute or defend the same, in person or by attorney, at his election, unless he has been judicially declared to be incompetent to manage his affairs.” (Code Civ. Proc. § 55; 2 R. S. 276, § 11.)

The guardian ad litem had the right to consent to an amendment to the complaint alleging the invalidity of the will under consideration, or to waive such an amendment, and the other defendants, being of full age, had the right to consent to or waive such an amendment to the complaint, and, by consenting to the judgment, have waived an amendment and have consented to the entry of a judgment striking down the will; and all persons represented by or claiming under them are estopped from claiming adversely to the provisions of this judgment. In this connection attention may again be called to the fact that this will was introduced in evidence in the action in the Supreme Court, and the two surviving sons, Henry C. and George M. Fox, who testified on the trial of this action that their father was entirely capable of making a will, testified on the former trial to facts and circumstances indicating that he was utterly incapable of making a will. Charles M. Fox, the father of these plaintiffs, testified on the trial of the first action to the same effect.

I am of the opinion that the plaintiffs failed to establish any title to, or right of possession of, the premises in dispute, and that the learned trial judge erred in directing a verdict for the plaintiffs.

This conclusion is reached without considering the effect of section 3 of title 5 of chapter 1 of part 2 of the Revised Statutes, which is incorporated into section 2628 of the Code of Civil Procedure. Hor do I deem it necessary to consider the contention of the defendants, that the judgment adjudging Henry Fox’s iucompetency for two years before his death to make a will, that he died intestate, and that his realty descended to his sons, subject to the dower right of their mother, was a judgment in rem declaring the status of Henry Fox and of his realty, and so conclusive against all the world. In Ennis v. Smith (14 How. [U. S.] 430) it was held-that a judgment distributing the estate of a decedent among his heirs and next of kin was a judgment in rem and evidence of the facts adjudicated against all the world. (See, also, Freem. Judg. [4th ed.] § 601.)

The defendants’ exception should be sustained, the verdict set aside and a new trial granted, with costs to them to abide the event.

All concurred.

Defendants’ exceptions sustained and verdict set aside and a new trial ordered, with costs to defendants to abide the event.