Whitney . Mayor, &c. of N. Y. 1772, subject, however, to the qualification created by the authority to erect piers. So far, it impaired the full effect of the covenants in those conveyances. It is argued by the appellant's counsel that the corporation could not restrain itself by contracts which should impair its authority as a municipal legislature (See 5 Cow. 539, 585, 588; 7 Id. 349; 6 Wheat. 593; 8 Cow. 146; MSS. opinion of Judge NELSON, in Britton v. Mayor, &c. of N. Y.). And it is said that so far as that effect was produced, the covenants were void. Without deciding that question, I think this case may be safely rested on the consent of the respondent to the new system organized by the acts to which I have referred. It was parcel of the system that the street seventy feet wide should be constructed at the expense of the proprietors of lots, and those whose grants did not extend to the new water line were authorized to fill up the land under the water to such line, and then to own it in fee simple. The respondent assented to this arrangement, and proceeded to construct the bulkhead opposite to his grants, and he thereby acquired valuable rights. By this act he assented to the qualification of his rights under his covenant, and to the new system for regulating the water front of the new city. The provision respecting piers was an important feature in that system, which the respondent, after affirming the portions which were for his benefit, cannot repudiate. That a party may waive the advantage of a constitutional provision for his benefit, is well settled (Baker v. Broman, 6 Hill, 47; Embury v. Conner, 3 N. Y. [Comst.] 511). Although I do not intend to express any opinion upon the distinction which has been taken between what has been called the powers of the corporation, or a private incorporated company, and those which they possess for the local government of a community, I am, nevertheless, of opinion that the contract in question, by which the parties under which the respondent claims title became entitled to the wharfage at the southerly end of the land under water granted to them, was subject to the power of the legislature of the State to change the water front of the city, though it might, as an incident, impair or even render useless the rights of wharfage mentioned in the contract (Charles River Bridge v. Warren Bridge, 11 Pet. 420). I am of opinion, that the judgment of the court below ought to be reversed, and a venire de novo be awarded. Muller v. Struppman. MULLER v. STRUPPMAN. N. Y. Supreme Court, First Department; Special Term, September, 1878. Again, November, 1878. SALE OF INFANTS' LANDS.-SUSPENSION OF POWER OF ALIENATION. WILL.-REIMBURSEMENT OF EXPENSES FOR EXAMINATION OF TITLE.-LIABILITY OF Guard IAN AD LITEM, FOR COSTS. The supreme court has no inherent, original authority to partition and sell the real estate of infants, and proceedings for that purpose are authorized alone by legislation, and the limits imposed upon them are controlling on the courts. The lands of infants cannot, in any form, be sold, when a sale would defeat the instrument under which the title should be acquired. A direction in a will, which simply has the effect of preventing a division of the estate until the youngest child of the testator attains the age of twenty-one years, or previously dies, does not produce an unlawful suspension of the power of alienation. If, after the sale of land under a decree of partition, the buyers cannot be compelled to complete their purchase on account of the invalidity of the partition proceedings, the purchasers should be reimbursed their expenses for examination of title, and the commissioners, appointed to partition, paid out of the money of the estate. Should there not be enough money in the estate available for that purpose, then the deficiency should be paid by the parties to the partition suit, in proportion to their interests. The guardian ad litem of infant parties to such a suit is personally liable for his wards' share of the deficiency. I. Motion by plaintiffs to compel purchasers of real estate to complete their purchase. This action was brought by Auguste Muller and Louis Muller, infants, by J. C. Julius Langbein, their guardian ad litem, against Charles Struppman and others, for the purpose of obtaining a partition of cer Muller v. Struppman. tain real estate, or a sale thereof and a division of the proceeds, if partition could not be made. The facts, so far as they are necessary to be here stated, are as follows: The premises in question were owned by one Adam Muller, who died on February 6, 1873, leaving him surviving Matilda Muller, his widow, and four children, viz.: Mary, wife of Charles Struppman, then aged 23 years; Bertha, aged 18 years; Auguste, then aged about 13 years; and Louis, then aged about 8 years. The deceased left a will, which was duly admitted to probate on February 25, 1873. The will, among other things, contained the following provisions: "First. After all my lawful debts are paid and discharged, I give and bequeath unto my wife Matilda, in lieu of her dower, the one-half of all the rents, interest and profits of my estate, real and personal, after payment of the taxes, assessments, insurance, Croton rents and repairs necessary to be made, to have and to hold the same to her during her natural life, she to support and maintain my infant children thereout. I give and bequeath the other half of such rents, interest, profits of my estate, real and personal, after payment of such taxes and other expenses aforesaid, to my children, equally to be divided among them until the youngest child shall attain the age of twenty-one years, when said estate is to be divided equally among my said children absolutely in fee forever. Provided, however, that if at such time my said wife shall still be living, then my estate shall be divided into two parts-one part thereof shall be set apart, and the income thereof, subject as aforesaid, shall be paid to my wife during her life, and upon her death such one-half shall be divided equally among my children absolutely in fee forever. The other half, when my youngest child shall be of age, shall be divided among my children .bsolutely in fee forever, and who I hereby constitute Muller v. Struppman. my residuary devisees, any posthumous child to share equally with my children born during my life.' Subsequent to the death of the testator, Matilda Muller, the widow, and Mary Struppman and Bertha Young, died. Mrs. Struppman left her surviving her husband and three infant children. On March 22, 1877, a petition of Auguste Muller and Louis Muller, by their general guardian, J. C. Julius Langbein, praying for leave to commence this action, was presented to the court. An order was made granting such leave, and this action was accordingly commenced. On March 19, 1878, a decree was entered adjudging the rights and interests of the parties, and directing a sale of the premises and a division of the proceeds. The commissioners who were appointed to make the sale, sold the premises No. 337 East Fourth street to Isaac Heilbrun; the premises 181 Avenue B to Babette Solomon, and 211 Avenue C to John Gibney. The purchasers respectively paid a sum equal to ten per cent. of their purchase price, as a deposit, but at the time appointed for the completion of the purchase, the purchasers refused to accept the title, and filed some nineteen specific objections to the title offered. The plaintiff's attorney moved, at special term, for an order requiring the purchasers severally to complete their purchase. The same objections as those filed with the commissioners were urged by the purchasers, in opposition to the motion, but the only objection passed upon was that the sale was unauthorized, and in violation of the statute. George F. and J. C. Julius Langbein, for plaintiffs. Henry M. Goldfogle, for purchaser Heilbrun, as to the question of jurisdiction, claimed :-I. It was against the provisions of the last will and testament to parti Muller v. Struppman. tion and divide the real estate in question, or to sell the same and divide the proceeds among the children and grandchildren of the testator (Young v. Langbein, 7 Hun, 151). The restriction created by the will was valid (Hunter v. Hunter, 17 Barb. 25, 92; Tucker v. Bishop, 16 N. Y. 402; Du Bois v. Ray, 35 Id. 162; Eels v. Lynch, 8 Bosw. 465; Lang v. Ropke, 5 Sandf. 364; McGowan v. McGowan, 2 Duer, 57; Burke v. Valentine, 52 Barb. 412; S. C., 5 Abb. Pr. N. S. 164, and cases there cited. Vide Levy v. Hart, 54 Barb. 248). Independent of any statutory provision, the court had no power or authority to entertain this action, or render the alleged judgment herein, and so defeat the intention, as well as the imperative will of the testator (1 R. S. 748, § 2; McGowan v. McGowan, 2 Duer, 57; Butler v. Butler, 3 Barb. Ch. 310; Bates v. Hillman, 43 Barb. 645; Du Bois v. Ray, 35 N. Y. 162; Morton v. Barrett, 22 Maine, 257; Land v. Otley, 4 Rand. 213; Tappan v. Deblois, 45 Maine, 122; Reno v. Davis, 4 Hea. & M. 283; Jackson v. Merrill, 6 Johns. 190; Parks v. Parks, 9 Paige, 117, and cases cited in note to 2 ed.; Rathbone v. Dyckman, 3 Id. 9; Hoes v. Van Hoesen, 1 N. Y. 122; Cowenhoven v. Shuler, 2 Paige, 122; Pond v. Berg, 10 Id. 140). II. The sale of the premises was illegal and in violation of the statute, and the commissioner's deed could pass no title to a purchaser (2 Edm. R. S. 203, § 176; Rogers v. Dill, 6 Hill, 415). Independently of an authority derived from the legislature, the court has no right or power to entertain the question or direct a sale (Tyler on Inf. 296; Garmstone v. Gaunt, 1 Collyer, 577; Rogers v. Dill, 6 Hill, 415, 417; Onderdonk v. Mott, 34 Barb. 106; Baker v. Lorillard, 4 N. Y. 266; Russell v. Russell, 1 Molloy, 525; Taylor v. Philips, 2 Ves. 23; Horton v. McCoy, 47 N. Y. 21, 26). The statute on which the purchasers rely has application not only to proceedings by petition for the |