Citation Numbers: 64 Misc. 602, 114 N.Y.S. 615
Judges: Carr
Filed Date: 12/15/1908
Status: Precedential
Modified Date: 1/13/2023
The plaintiff sues to recover a deposit of $500 paid on the execution of a contract for the conveyance of lands and he claims that the vendor’s title is unmarketable. The defendant claims that his title is marketable and asks for specific performance of the contract. The controversy arises under the following circumstances: the title to the real property in question was in one Matilda Hoag at the time of her death in September, 1905; she left a last will and testament whereby she devised the land in question to her son Oscar Hoag, with remainder over in fee to her grandniece Harriet Eay Dayton, an infant; the will was offered for probate in Kings county, and the surrogate by a decree entered on March, 1906, refused probate thereof; on August 8, 1907, an order was entered in the court appointing a guardian ad litem, for said infant for the purpose of maintaining an action to establish said instrument as the last will and testament of the decedent, and on August 19, 1907, a further order was entered permitting the guardian ad litem, to compromise the infant’s claim for the sum of $1,500, which was received by the guardian and the action brought by him was discontinued on August twenty-third of the same year. The plaintiff in this action claims that the rights of the infant devisee were not cut off by the settlement authorized by the court and that, therefore, the defendant’s title is unmarketable as the infant may hereafter maintain appropriate proceedings to assert her title to the land in question. It is settled law that the refusal -by a Surrogate’s Court to admit to probate a will of real property is not conclusive upon the devisee, and that he may assert his rights in a common-law action, or by partition or wherever or whenever the title to the real property comes in question. Corley v. McElmeel, 149 N. Y. 228; Harris v. Harris, 26 id. 433. The devisee derives title to real property under the will itself and not from a probate decree. The Code of Civil Procedure provides several remedies for the establishment of a will in sections 1861-1867 and 2653a; but none of these provisions may apply to a situation such as we have before us here. Section 1861 relates to the establishment of a will of real property executed according to our law, but when the
While it has been held that courts of equity have inherent power to direct a sale of an equitable interest in real property belonging to an infant (Anderson v. Mather, 44 N. Y. 249) ; it has also been held that there is no inherent power to authorize a conveyance or mortgage of an infant’s legal estate and the power so to do can- come only from statute. Losey v. Stanley, 147 N. Y. 560; Ellwood v. Northrup, 106 id. 172. The order entered by this court did not in terms authorize the execution of any conveyance or release by the
Judgment for plaintiff, with costs.