App. Div.] Fourth Department, May, 1908. The intestate left him surviving no widow or lineal descendants, and no brothers or sisters or other descendants, but a paternal uncle, James McMillan, who died intestate during the pendency of this proceeding, leaving children, and of whose estate an administrator has been appointed and appears on this appeal, a paternal aunt, Luna A. McMillan, four maternal cousins, children of a deceased brother of the mother of the incompetent, and other collaterals also in the maternal line. The entire principal of the estate of the incompetent intestate at the time of the accounting by the committee amounted to $8,950, of which the sum of $3,650 was the avails of real estate sold in the partition action above mentioned, and $300 derived from a sale of other lands belonging to him, and $5,000 a legacy by the will of his maternal grandfather, and which was paid over to the committee in June, 1891. After the costs and expenses allowed, there were left for distribution $8,192.38. The court below held that all this property was personal estate, and only the uncle and aut were entitled to share in it, basing his decision in directing distribution upon Matter of Davenport (172 N. Y. 454.) It is a general rule, and regulated by statute in this State, that upon a sale of real estate of an infant or incompetent person the "proceeds are deemed property of the same nature as the estate or interest sold, until the infant arrives at full age, or the incompetency is removed." (Code Civ. Proc. § 2359*.) This has long been a statutory provision. (Laws of 1814, chap. 108, § 1; † Laws of 1815, chap. 106, § 5; 2 R. S. 195, § 180; 3 R. S. [Banks & Bros. 6th ed.] 202, § 124; Laws of 1864, chap. 417, § 10; Ford v. Livingston, 140 N. Y. 162, 167; Walrath v. Abbott, 75 IIun, 445, 451.) The learned county judge, while recognizing this principle, held it was only a fiction and when the infant reached his majority the character of his property changed to personalty, although he was *See Laws of 1880, chap. 178, as amd. by Laws of 1892, chap. 523, and Laws of 1907, chap. 49.-[REP. Repealed by Laws of 1828 (2d Meeting), chap. 21, § 1, subd. 170.- [REP. Repealed by Laws of 1828 (2d Meeting), chap. 21, § 1, subd. 189.—[REP. | Amd. by Laws of 1869, chap. 627 and Laws of 1870, chap. 37. See Laws of 1874, chap. 446, tit. 2, § 14; Id. tit. 11, § 2; Laws of 1880, chap. 245, § 1, subd. 3, 1; Id. § 1, subds. 40, 45, 46, 50; and Id. §§ 2-5.—[REP. Fourth Department, May, 1908. [Vol. 126. an imbecile and remained so until his death. The philosophy of the rule adverted to is that the land of the infant or incompetent has been sold without his volition or intelligent assent and the character of his property must remain unchanged until the disability has been removed. In a note to Pomeroy's Equity Jurisprudence (Vol. 3, § 1167), cited approvingly in Matter of Department of Public Parks (89 Hun, 529, 530), the principle is set forth in this way: "Where land has been taken not by voluntary negotiation, but by the compulsory proceedings authorized by statute and the money is paid into court, it continues to be real estate until it is taken out by some person having a right to elect to treat it as money, that is, by some person sui juris who is an unfettered owner. If the owner is an infant or a lunatic, or if the land is subject to a settlement, the money necessarily retains its character as real estate." The statute fixes the expiration of infancy arbitrarily at twentyone years and of incompetency when intelligence supervenes. If infancy and incompetency co-exist during minority and the mental incapability remains after infancy has passed, the reason for the retention of the character of the property at the time the sale is made is still present. The rule is primarily for the benefit of the incompetent or infant, and yet, as there has long been a difference in the laws of descent and of distribution, it is founded to some extent upon the propriety of keeping unchanged the right of succession to the property in the event of the death of the infant or incompetent. (Forman v. Marsh, 11 N. Y. 544; Laws of 1815, chap. 106, § 5; Horton v. McCoy, 47 N. Y. 21; Story Eq. Juris. § 1357; Shumway v. Cooper, 16 Barb. 556.) Ordinarily a committee of the person and estate of an infant is not appointed for the general guardian can exercise all the functions of a committee. There is, however, no legal objection to the appointment of a committee of the person and estate of an infant. (Francklyn v. Sprague, 121 U. S. 215, 229, and cases cited; Matter of Chattin, 16 N. J. Eq. 496.) If a committee had been appointed of the incompetent McMillan just before he attained his majority, I assume the infant, even by legal fiction, would never have assumed the control of his property, and the disability would have been a continuous one, although App. Div.] Fourth Department, May, 1908. in two different capacities. Ten years elapsed after he became twenty-one before a committee was appointed. During all that time the disability continued. The property remained in the custody of the general guardian, who was the father of the infant. No settlement was ever had by him as guardian, and when he was appointed committee he held the property and there was no actual change in his management or control. The avails of the real estate were in his hands as before. Had a committee of the estate of the incompetent been appointed after the sale in the partition action and the proceeds paid over to him, the heirs at law would be entitled to the estate upon his death, rather than his next of kin. The reason of this is because the disability, his mental unsoundness, had continued to the time of his death and the property remained in effect real estate, although consisting of money or its equivalent in kind. The lunatic was not capable of committing any act for the purpose of changing the nature of the property. In this instance a committee during infancy was unnecessary for the guardian performed all the duties which could have been required of a committee. The imbecility, however, was continuous. The imbecile never exercised any control over the property. It was never in his possession. He had no lucid interval. He was an idiot from birth. If a proceeding had been commenced immediately after the infant arrived at his majority to have him judicially declared incompetent and thirty days had elapsed before the appointment of a committee, the character of the property would have changed to personalty on the day the incompetent attained his majority, if the learned county judge is correct in his position. If, however, the proceeding had been earlier set in motion and terminated at any time during the infancy, the avails of the sale would have remained real estate. Where an interest in real estate of an infant upwards of twenty years of age is sold pursuant to a judgment in a partition action and the complaint alleges and the proof shows that the infant was an imbecile, as well as an infant, and the judgment so recites, the proceeds of the sale would continue to be real estate until each disability disappears. The result of these complications, any of which might arise, it seems to me, makes it necessary to hold where a person, whose land Fourth Department, May, 1908. [Vol. 126. is sold during his infancy; is an incurable incompetent from birth, that the nature of the property remains unchanged during his lifetime. Much is made of the proposition that it is a mere fiction whereby the property retains its character as real estate, when in kind personalty, and then again is changed when the infant becomes of age. The preference given to real property over personal property, and many of the legal requirements pertaining to its conveyance and management are fictions, and yet they are retained in their vigor and must be observed. The counsel for the respondents rely upon Forman v. Marsh (11 N. Y. 544). In that case the land of Forman, the infant, was sold and a bond and mortgage executed to his guardian for $3,000 to secure the purchase money. After the infant became of age he settled with his guardian, giving him a receipt in full. There was due him some money which was not in fact paid over, and the bond and mortgage were not assigned to him. The guardian had them at the settlement, and a general power of attorney was given to the guardian as an individual to collect these moneys and reinvest the principal and take charge of the same for Forman. A year later Forman died and a contest arose over the character of the property invested in this bond and mortgage, the heirs at law claiming it was real estate. The Court of Appeals held otherwise on the ground that Forman after he attained his majority came into possession of the property and exercised actual dominion over it. The court used this language (at p. 548): "It will be remembered that in this case the infant, after he arrived at the age of twenty-one years, came into the possession of the bond and mortgage, executed an instrument in which he acknowledged the receipt of them and discharged his guardian from all claims against him in that capacity. The relation of guardian and ward had thus become terminated. All the ends contemplated by the statute had been accomplished. The course of descent had not been changed by any act of the guardian, and the infant had arrived at that age when the law regards him as competent to assume the entire control of his property. At this time the bond and mortgage were personal property in fact, and I think that they should be so regarded in law.” Inasmuch as the real estate came to the incompetent through his App. Div.] Fourth Department, May, 1908. mother, it passes, by the statute of descent, to the descendants of her deceased brother and sister, who are the appellants in this case. (Real Prop. Law, § 288.* See, also, Id., §§ 280, 286, 287.) The court below has held that all the personal property should be distributed, one share among the children of James McMillan, the paternal uncle of the incompetent, and the other share to his paternal aunt, Luna A. McMillan, excluding the cousins from any participation in the distribution of the estate, relying upon Matter of Davenport (172 N. Y. 454). Section 2732 of the Code of Civil Procedure regulates the order of distribution of an intestate's personal estate. Subdivision 5+ * * provides: "If there be no widow, and no children, and no representatives of a child, the whole surplus shall be distributed to the next of kin, in equal degree to the deceased, and their legal representatives." Subdivision 10+ provides that "where the descendants or next of kin * are all in equal degree to the deceased, their shares shall be equal." Subdivision 11, when of unequal degree, "according to their respective stocks;" thus inheriting in their own right, in equal shares; if by representation, the share of the parent. Subdivision 12, as it was in force at the time of the death of the intestate (Laws of 1898, chap. 319) reads as follows: "Representation shall be admitted among collaterals in the same manner as allowed by law in reference to real estate." Before chapter 319 of the Laws of 1898, became the law, representation was not admitted after brothers' and sisters' children; and by chapter 539 of the Laws of 1905, this limitation was restored so as not to admit representation after brothers' and sisters' descendants, but chapter 319 of the Laws of 1898, was in effect when the intestate died in December, 1904. We must, therefore, refer to the Real Property Law, providing for the order of descent to enable effect to be given to this subdivision. The intestate left no children, or brothers or sisters, or descendants of them. Six of the appellants are the next of kin of the intestate, if at all, as the descendants of Albert Journeay, a deceased *See Laws of 1896, chap. 547, § 288, as amd. by Laws of 1904, chap. 106.-[REP. +See Laws of 1893, chap. 686, as amd. by Laws of 1903, chap. 367.—[REP. See Laws of 1893, chap. 686.-[REP. |