Opinion of the Court, per ANDREWS, Ch. J. [Vol. 147. this court binding the inheritance of an infant by any discre tionary act of the court. As to personal things, as in the composition of debts, it has been done; but never as to the inheritance; for that would be taking on the court a legisla tive authority, doing that which is properly the subject of a private bill." And in Russel v. Russel (1 Molloy, 525) the lord chancellor of Ireland said: "I have no authority to bind an infant's legal estate. This was decided long ago by Lord HARDWICKE in Taylor v. Philips. The chancellor has never since attempted to deal with the legal inheritance of infants without the aid of Parliament." The subject of the inherent jurisdiction of equity over the estates of infants was considered by NELSON, J., in his dissenting opinion in Williamson v. Berry (supra), which, upon this point, has been frequently referred to with approval. Speaking of the powers of management and control over the property of infants vested in courts of chancery, he says: "They relate to their personal and the income of their real estate, the court having no power to direct the sale of the latter for their maintenance and education; that power rests with the legislature." The doctrine has been frequently declared in this state that a court of equity has no inherent power to direct the sale or mortgage of the real property of infants, and that its power in this respect is purely statutory. (Rogers v. Dill, 6 Hill,. 415; Baker v. Lorillard, 4 N. Y. 257; Forman v. Marsh, 11 id. 544; Horton v. McCoy, 47 id. 26; Jenkins v. Fahey, 73 id. 355, 361.) The obiter remarks of Ch. KENT on this subject in Matter of Salisbury (3 Jo. Ch. 348) and in Hedges v. Riker (5 Jo. Ch. 163) are contrary to the general current of authority. The text books are explicit in stating the modern doctrine on the subject (Pom. Eq. Jur. § 1309; Bispham's Eq. § 549). The question of the inherent power of a court of equity to order a sale of an infant's real property, upon the theory of a supposed benefit to him, is quite distinct from its acknowledged power in the enforcement and protection of trusts and from the power of courts in the exercise of their ordinary jurisdiction to establish or enforce rights of N. Y. Rep.] Opinion of the Court, per ANDREWS, Ch. J. property between parties to a litigation, whether infants or adults. Having reached the conclusion that the order made in the case has no support in the inherent jurisdiction of the court over the estate of the infant defendants, it remains to consider whether it can be sustained under any statutory authority. The legislature possesses whatever power as parens patria was in England lodged in the sovereign over the estates of infants, consistent with constitutional limitations. From the origin of the state government the legislature has enacted statutes conferring upon courts in certain cases and under careful restrictions the power to order the sale or mortgage of the real property of infants for their benefit. The petition presented to the court in this case asked that the order be granted "pursuant to the statute in such cases made and provided," but no specific statute was referred to. On the argument at the bar the only statutory authority relied upon to sustain the order was the 65th section of the Statute of Uses and Trusts, as amended by chapter 257 of the Laws of 1886. The original section declared that: "When the trust shall be expressed in the instrument creating the estate, every sale, conveyance or other act of the trustee in contravention of the trust shall be absolutely void." This was plainly a provision for the protection of the trust estate against destruction or impairment by the unauthorized act of the trustee. The estate to which the section refers is the trust estate, that is, the estate held under the trust. It did not in the nature of things comprehend legal estates in remainder in the same land taking effect on the termination of the trust. It needed no statute to protect remaindermen as against any sale or conveyance by the trustee. It perhaps added nothing to the protection of the cestui que trust beyond that given by the common law. But it was a statutory expression of a rule which would challenge the attention of the trustee and of persons dealing with him in respect to the trust. But the material point is, that the legislature, in enacting the section, was dealing with transactions by the trustee in respect to the trust estate. The Opinion of the Court, per ANDREWS, Ch. J. [Vol. 147. trust estate, in a case like the present, was the estate for the life of the beneficiary named. An attempted sale or conveyance by the trustee of the estates in remainder would, doubtless, be ineffectual, but this would be so for the reason that the trustee would have no estate in remainder to sell or convey, and not because such sale or conveyance would be in contravention of the trust. The estates in remainder would be outside of and not within the trust. The amendment of 1886 relaxed somewhat the stringency of the original section. It added a proviso giving power to the Supreme Court to authorize any trustee to "mortgage or sell any such real estate whenever it shall appear to the satisfaction of said court or a judge thereof that it is for the best interest of the said estate so to do, and that it is necessary and for the benefit of the estate to raise by mortgage thereon or by a sale thereof funds for the purpose of preserving or improving such estate." But the amend inent in no wise vested in the court a compulsory power to order the sale or mortgage of estates outside of the trust. It makes no reference to infants or persons incapable of acting for themselves, and if the construction claimed could be sustained it would authorize the court to order the sale or mortgage of the estates in remainder of adults without their consent, for the purposes specified, which would be plainly unconstitutional. (Powers v. Bergen, 6 N. Y. 358; Brevoort v. Grace, 53 id. 245.) The scope and purpose of the section and the amendment is plain. It was to vest in the court the power to order a sale or mortgage, which, under the section as it originally stood, it might not possess, when necessary to preserve and improve the trust estate, and this purpose is emphasized by the circumstance that notice of the application is required by the final clause of the amendment to be given only to the beneficiaries of the trust. It is claimed that the case of In re Morris (63 Hun, 619), which was affirmed in this court without opinion (133 N. Y. 693), is adverse to the construction here given to the section as amended. The principal question argued in that case seems to have been whether cer tain assessments for local improvements were to be borne by N. Y. Rep.] Opinion of the Court, per ANDREWS, Ch. J. the trust estate alone or should be apportioned between the trust estate and the estate in remainder. The opinion in the General Term did not refer to the question here considered. If that case should seem in any aspect to conflict with the construction we now place upon the statute we think it ought not to be followed. It would be most dangerous to establish a construction of the statute of 1886, which would make it possible to deprive infants of their inheritance by hurried and informal proceedings, such as were taken in this case, and that too on the application of a party hostile in interest, and who by the general rule of law was bound to pay the ordinary taxes and improvements upon the property. This decision does not leave the court without power upon the application by or in behalf of infants whose property is in danger of being lost by the failure of duty of a life tenant to pay taxes or make improvements, or for other reason, to intervene for their protection. The provisions of the Code (Sec. 2348 et seq.) for the sale or mortgage of the real estate of infants are ample for such contingencies. They are in the main transcripts from the Revised Statutes. But proceedings under these sections are hedged about by safeguards, preventing inconsiderate action by courts, and by requiring security, protect infants against the dishonesty of those who undertake to represent them. The court has on repeated occasions declared proceedings instituted under these provisions to be void, when not taken in conformity to the statute. (Ellwood v. Northrup, 106 N. Y. 172; In re Valentine, 72 id. 184; Battell v. Torrey, 65 id. 294.) There is no pretense that this is a proceeding under the general statute for the sale or mortgage of the real estate of infants. It conformed to none of its requirements. The consent of the guardian ad litem of the infant defendants to the granting of the order does not conclude them. (Ellwood v. Northrup, supra.) The court had no jurisdiction to grant the order, and it is open in this proceeding to collateral attack for want of jurisdiction. (Risley v. Phenix Bank, 83 N. Y. 318; Williamson v. Berry, supra.) The plaintiffs may as a conse quence of our decision lose their money. But they were chargeable with notice of the statements in the petition and of the legal interests of the children in the land. (Pitcher v. Carter, 4 Sand. Ch. 1, 20.) The infants on the other hand have had no benefit from the money advanced to their father, and they should not lose their inheritance unless it has become bound in accordance with law. The judgment below should be reversed and a new trial granted. All concur (FINCH, J., in result), except GRAY, J., not voting, and HAIGHT, J., not sitting. Judgment reversed. BAPTIST M. CORNER et al., Respondents, v. ALEXANDER MACKEY, Appellant. 1. PARTNERSHIP ORIGINAL FIRM AND SUCCESSOR-RELATIONS WITH THIRD PARTY AS TO PROFITS AND LOSSES. When a firm, which has rendered annual accounts to a person entitled by contract to share in the profits and losses of the business, in which accounts the balance was carried forward from year to year, renders a final account at the end of a certain year, which is accepted without objection, and then dissolves and is succeeded by a new firm materially changed in membership, with which the same contract is maintained as to the relations of the parties in conducting the business, and which continues the rendition of the annual accounts, carrying forward the balance shown by the final account of the old firm, the person to whom such accounts are rendered cannot, by thereafter re-opening the accounts between himself and the old firm, obtain credit on the account with the new firm for errors and overcharges in the old account, unless there exists some contract or substitution whereby the new firm has obligated itself to such claimant to assume and pay whatever liability the old firm was under to him. 2. NOVATION OF DEBTS. The principle of novation of debts has no application to such a case, when the new firm has not assumed the liabil ity of the old firm to the claimant beyond, at most, the indebtedness entered on the books, and the claimant has not discharged the original debtor and accepted the new firm as his debtor for such excess. Reported below, 73 Hun, 236. (Argued October 17, 1895; decided November 26, 1895.) |