27 N.Y.S. 834 | N.Y. Sup. Ct. | 1894
On the 10th day of September, 1883, John Baxter, father of Benjamin Baxter and Mathias Baxter, parties to this action, executed a paper purporting to be his last will and testament, wherein he named the defendants, Mathias Baxter and Benjamin Baxter, as executors. After the death of the testator, Mathias and Benjamin Bakter filed their petition with the surrogate of the proper county for the probate of the will of John Baxter, deceased; and objections to the probate of the same were filed on the ground, among other things, that the testator, at the time of making his will, was not competent to make a valid will. On the trial of that ques
“The Court: The surrogate of the county of Otsego, in a proceeding in which all the parties in this case were parties, and in which the question of the mental competency of John Baxter on the 10th day of September, 1883, was litigated, having adjudicated that he was then of unsound mind, and mentally incompetent to make the instrument which was then propounded as his last will and testament, that adjudication is competent in this court, and is conclusive on the mental competency of John Baxter upon that day. If he was on that day mentally incompetent to make any testamentary disposition of his real estate, as matter of law, it follows that he was mentally incompetent to convey his real estate, or to make any disposition of it, by deed. I shall hold that, by reason of that adjudication, this conveyance, which was executed upon the same day, was void.”
This defendant duly excepted to the ruling and determination of the judge, and insisted that the whole case should be submitted upon the questions of fact to the jury, or determined by the court as questions of fact, upon all the evidence to which the court responded :
“The Court: I decline to hold that there is any question of fact of that kind in thi; case to submit to the jury, and I decline to submit the question to them; and, as a court, I find John Baxter, at the time of the execution of the instrument in question in this case, was mentally incompetent. I find it as a question of fact in this case, and find it from the adjudication, without taking into consideration the testimony in the case.’.’
One of the principal questions before the trial court, and litigated in this action, on the trial, was whether or not, at the time of the execution and delivery of this deed, the grantor was mentally incompetent to execute a valid conveyance of real estate. Upon this question the learned trial court took the decree of the surrogate as conclusive evidence against the defendant of the invalidity of the deed. While the decree of the surrogate, under the circumstances of this case, was, we think, competent evidence against the defendant, and as such was prima facie evidence of the matters adjudged in it, we do not regard it as absolutely conclusive as an estoppel against him. If the will had been admitted to probate, the decree of the surrogate would have been presumptive evidence only of all matters determined by the surrogate. Section 2627 of the Code of Civil Procedure, upon this subject, provides as follows:
“A decree admitting to probate a will of real property * * * establishes presumptively only all matters determined by the surrogate * * * as against a party who was duly cited, or a person claiming through or under him, or upon the trial of an action, or hearing of a special proceeding in which a controversy arises concerning such will, or when the decree is produced in evidence in favor of or against a person. * * *”
In construing this section, the court of appeals, in Re Merriam, 136 N. Y. 61, 32 N. E. 621, uses this language:
“The record is presumptively evidence only of its due execution, and the mental competency and freedom from restraint of the testator, and not of the validity of the devises contained in it, in any tribunal where .the title to the real property of the testator may be in issue;” citing section 2627 of the Code, supra.
Under this provision of the statute, the heirs would not have been concluded absolutely by the decree of the surrogate, if this real estate had been devised to the defendant in the will, and the same had been admitted to probate. The heir not being estopped, under such circumstances, by the decree of the surrogate, it would seem to follow that the grantee under the deed, the validity of which was not directly in issue before the surrogate, is not estopped by a decree that the grantor, on the day of the execution of the deed, was not competent to devise real estate. The doctrine is laid down in Abbot’s Trial Evidence, (page 111,) and supported by the authorities there cited, that:
“Where the probate of a will would not be conclusive in favor of the will, a decree of the probate court rejecting the will is not conclusive against it.”
This deduction would seem to be logical, when applied to the will itself, and to apply with greater force when applied to a deed executed contemporaneously with the will. It is quite true that the trial court, sitting as a court of equity, might have regarded the decree of the surrogate sufficient evidence, as matter of fact, and considered that prima facie evidence, as matter of fact, sufficient to overcome all the other evidence in the case. But his refusal to consider the other evidence, and holding that the decree was, as matter of law,, conclusive, was, we think, error.
PUTNAM, J., concurs. HERRICK, J., dissenting.