#### Mary C. Blanchard and another, as Executors of the Will of Harry W. H. Blanchard, Deceased, and Mary C. Blanchard, as Special Guardian of Mary E. Blanchard, an Infant, Plaintiffs, *v.*Elizabeth Blanchard, Defendant.

(Supreme Court, Kings Special Term for Trials,

December, 1900.)

Marketable title — Sale of infant’s real estate — Allegations that it is made to avoid partition — Agreement of special guardian may be oral — Failure to give bond fatal — Code C. F., §§ 2350, 2352, 2356.

A sale of infant’s real estate is sufficiently brought within that part of section 2350 of the Code of Civil Procedure, excusing a statement of the otherwise required details of the infant’s estate and circumstances in a case where the sale is sought in order to avoid partition, by allegations of the petition that executors, who have a power of sale over all the real estate of the infant’s ancestor, are about to sell it, and that the “ purchasers of said property will no doubt be strangers to said infant and apt to disregard in great measure her undivided interest, and may also bring an action against said infant to compel a partition of said property”.

*285Section 2356 of said Code does not specifically require that the agreement of sale, Which must be entered into by the special guardian, should .be written and, if the same is confirmed by the court, it is sufficient, if oral.

The bond required of the special guardian, by section 2352 of said Code, is an absolute necessity; and therefore where the court orders that a bond, theretofore given by the special guardian as guardian of the property of the infant in the court of the surrogate, shall be deemed a sufficient bond in the proceeding for the sale of the real estate, the latter proceeding is void and a purchaser of land affected by the sale need not carry out his purchase.

This is an action to compel the defendant to specifically perform an alleged contract for the purchase of real estate.

Charles M. Stafford for plaintiffs.

John 0. McGuire for defendant.

Gaynor, J.:

The two adult plaintiffs sold the land to the defendant at public auction as executors of the last will of a deceased, under a power of sale therein. The defendant refused to carry out the sale on the ground that a good title was not tendered. The infant plaintiff is a posthumous child of the said deceased, and as such became vested with title to an undivided one-third of the said land by virtue of the statute letting in after bom children of a testator to' the share they would have taken if he had died intestate, where the will does not provide for them. A proceeding for the sale of such infant’s interest was had in this court, and a deed of conveyance of such interest by the special guardian appointed therein was tendered to the defendant with the deed of the executors. Objection was made that such deed would not convey the infant’s title, because of irregularities in the said proceeding.

The first alleged irregularity is that the petition, for not stating the particulars enumerated in section 2350 of the Code of Civil Procedure concerning the real and personal estate of the infant, his income and the debts against his estate, was insufficient to confer jurisdiction on the court. But that section says that these particulars need not be stated where the application is made to sell an undivided interest of the infant in order to avoid an action of partition by his cotenants. The petition sufficiently states that this is the *286object. After stating that the executors are about to sell the land under the power of sale in the will, it says that the “ purchasers of said property will no doubt be strangers to said infant and apt to disregard in great measure her undivided interest, and may also bring an action against said infant to compel a partition of said property ”. Er-om the nature of the case such a statement must usually be inferential like this one.

The next alleged irregularity is that the special guardian did not report back to the court a written agreement of sale by her of the infant’s interest for the confirmation of the court, but only an oral agreement, and that the court was therefore without jurisdiction to confirm the agreement of sale and direct a deed of conveyance to be made by the special guardian. The case of *Hardie*v. *Andrews*(13 Civ. Pro. 413) is cited for this. But the question was not up there, and therefore could not be decided. The observation in the opinion of the learned judge that the word “ enter ” in the provision in section 2356 of the Code of Civil Procedure that the special guardian “ must enter into an agreement ” for the sale and report it to the court, “ implies a written agreement ”, was *obiter.*In common speech the word has no such restricted meaning, and I cannot find that it has in law. The proceeding to sell an infant’s real estate comes under the general rule that in statutory proceedings in derogation of the common law to divest one of his property every requirement of the statute having even a semblance of benefit to the owner must be complied with in order to divest him of his title (Ellwood v. Northrup, 106 N. Y. 172; Battell v. Torrey, 65 N. Y. 294; Stilwell v. Swarthout, 81 N. Y. 109; Agricultural Ins. Co. v. Barnard, 96 N. Y. 525). But a court cannot add requirements. This statute does not say the agreement must be in writing, and it has been held in a ease in principle the same that a court cannot require a writing -as an essential when the statute does not (Kane v. City of Brooklyn, 114 N. Y. 586). Nor does the statute of frauds stand in the way of requiring specific performance by the defendant here because of the -absence of such written agreement, as in *Matter of Hazard*(9 Paige, 365). The agreement to be performed is the written one made by the defendant with the executors. The infant seems to be an unnecessary party to the action.

The next objection is more serious. Section 2352 of the Code of Civil Procedure requires that the special guardian on being ap*287pointed must file a bond in such an amount and with such sureties as the court shall direct “ for the faithful discharge of his trust”, and the accounting for and paying over of all money received by him in the proceeding. The person appointed to be such special guardian was also the guardian of the property of the infant, appointed by a Surrogate’s court; and in the order appointing her such special guardian it was ordered “ that the bond heretofore given by her for the faithful discharge of her duties as guardian of said infant be deemed a sufficient bond in respect to these proceedings, and a compliance with the statute relating thereto”. As the sureties on that bond could not be held liable for any dereliction of the special guardian, the order in fact dispensed with any bond. This seems to have been fatal to the jurisdiction of the court to go further in the proceeding. The requirement that a bond.should be given is of a most substantial character, and, as we have seen, no requirement of the statute “ having the semblance of benefit ” to the infant could be dispensed with by the court without making the proceedings as a whole void. It is said that as the order confirming the report of sale directed that the proceeds of the sale should be paid to the individual who was the special guardian in his capacity as guardian of the property of the infant, no harm can have been or may be done to the infant. But the bond required by the statute of a special guardian includes more than his accounting for the purchase money. It is conditioned for the faithful performance of all his duties; and the most important of them all is that he shall not sacrifice the infant’s property, but shall honestly and diligently get the best price he can.

Judgment for the defendant with costs.