(77 Hun, 230.)

#### KNOX v. NOBEL.

(Supreme Court, General Term, First Department.

April 13, 1894.)

1. Executors and Administrators—Appointment—Collateral Attack.

A decree granting letters of administration to an infant is void, and may be attacked on that ground in a collateral proceeding. 27 N. Y. Supp. 206, affirmed. •

2. Same—Action in Individual Capacity to Disaffirm Contract.

Where an infant, to whom letters of administration are granted, executes a transfer of property of the estate, he may, after attaining majority, sue individually to disaffirm the contract in order to avoid liability for damages to transferee, sustained by reason of plaintiffs want of authority. 27 N. Y. Supp. 206, affirmed.

Appeal from special term, New York county.

Action by Katherine L. Knox against Henry Nobel to rescind a contract. From an interlocutory judgment overruling a demurrer to the complaint (27 N. Y. Supp. 206), defendant appeals. Affirmed.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.

Henry Hoyt, for appellant.

Lucien Birdseye, for respondent.

VAN BRUNT, P. J.

This action is brought the plaintiff individually to set aside a sale attempted to be made by her as the administratrix of her deceased husband, upon the ground that at the time of granting the letters of administration she was a minor, and that the sale was made under the fraudulent representations and inducements of the defendants, and that the consideration paid was inadequate. The main question involved upon this appeal is whether letters of administration issued by the surrogate to a minor are or are not void. It is urged that, as it is well established that the granting of letters of administration by the surrogate is *356conclusive as to Ms jurisdiction, the question as to the eligibility of the plaintiff to the office of administratrix cannot be inquired into collaterally. We think that the question as to whether the plaintiff could legally be appointed administratrix of her deceased husband, she being a minor, has no relation whatever to the question as to the jurisdiction of the surrogate to grant letters of administration; and here is where the confusion has arisen. An examination of section 2660 of the Code as it existed at the time of the issuing of the letters of administration in question will show that the eligibility of a petitioner to appointment as administrator has no connection with the facts upon which the jurisdiction of the surrogate’s court to grant letters of administration upon the estate depends. The section says:

“A person entitled absolutely or contingently to administration upon the estate of an intestate may present to the surrogate’s court having jurisdiction, a written petition duly verified, praying for a decree awarding letters of administration either to him, or to such other person or persons having a prior right, as may be entitled thereto, or in the alternative as the petitioner elects, and if necessary that the persons required to be cited as required in the next section but one may be cited to show cause why such decree should not be made. The petition must set forth the petitioner’s title [it is clear that what is meant by this provision is the relationship under which the petitioner claims]; the facts upon which the jurisdiction of the court to grant letters of administration upon the estate depends; and the names of the husband or wife if any and of the next of kin of the decedent, so far as they are known to the petitioner or can be ascertained by him with due diligence.”

It is tMis seen that the facts upon which the jurisdiction of the court to grant letters depend do not include the petitioner’s title, and were not intended to include the petitioner’s title, and are, by the very language of the section, excluded; and therefore, when it has been held that the grant of letters of administration is conclusive as to the. surrogate’s jurisdiction, it has only been decided that the granting of such letters is conclusive as to the facts upon which the jurisdiction of the court to grant letters upon the estate depend; and, as already seen, the petitioner’s title is not one of them, nor is the petitioner’s eligibility to the office. While, therefore, the decree of the surrogate is conclusive as to all the facts necessary for his jurisdiction, it imports nothing as to the eligibility of the person to whom the letters are issued. The statute expressly proMbits the granting of letters to a person convicted of an infamous - crime, or to one incapable of making a contract, or to a person who is under 21 years of age, etc. Can it be said that the surrogate by his ipse dixit can repeal the statute, it being manifest that the question of the eligibility of the person proposed to be appointed administrator is not one of the jurisdictional facts? It would be a monstrous proposition to hold that any judicial officer can, by his mere will, override the express prohibitions of the statute.

The question of the age of this petitioner was in no respect presented to the surrogate for adjudication. No such issue was before him, and his jurisdiction to appoint an administrator did not depend upon any such inquiry; and in tMs respect the case at bar differs from those of Roderigas v. Bank, 63 N. Y. 460, and 76 N. Y. *357316, and Bolton v. Schriever, 135 N. Y. 70, 31 N. E. 1001. In those cases the question before the surrogate was as to his light to act at all, and, he hating determined the question of jurisdiction, it was held that such adjudication could not be attacked collaterally. The right of the surrogate in the case at bar to appoint an administrator could not be attacked collaterally, but when he selects a person whom the statute says he shall not appoint as such administrator, after having determined to appoint such an officer, his act is absolutely void. Such was the rule laid down in Carow v. Nowatt, 2 Edw. Ch. 58, in which it was held that, not only was the appointment of a minor void, but he could not be called to account for any portion of the estate which he had received. It seems, therefore, reasonably clear that the appointment by the surrogate of the plaintiff was void, and that the contract, as far as the plaintiff attempted to bind the estate of her husband, was also void. But it is a familiar principle that a person attempting to enter into a contract in a representative capacity, having no authority to enter into such contract in such capacity, is bound individually; and hence, even if this plaintiff had no authority to enter into the con' tract as the administratrix of her husband, because of the invalidity of her appointment, she would have been held individually had it not been for her minority; and, even if the contract was entered into at a time when she was a minor, unless repudiated within a reasonable time after she became of age, she might be held upon it. The plaintiff, by this action, comes into court, and seeks to disaffirm this contract, alleging that it was entered into while she was a minor, further alleging that it was obtained by fraud, and that she seeks to avoid the personal responsibility which would arise against her because of her entry into the contract as administratrix of her husband without having the authority so to act. It seems to us that she has a right to maintain this action to relieve herself individually from any claims which might be attempted to be enforced against her. The estate which she assumed to represent has no interest in this question. It is not bound by the contract, and is not at all interested in the question as to whether the plaintiff individually is or is not so bound. She alone is interested in the question as to whether she is to be liable to the defendants for damages in attempting to enter into a contract without authority. We are of opinion, therefore, that the judgment should be affirmed, with costs, with leave to defendants to withdraw a demurrer, and, on payment of costs of court below and of this court, to answer.

PARKER, J., concurs.

FOLLETT, J.

1 concur, with leave to withdraw demurrer and answer on payment of costs.