35 N.Y.S. 400 | N.Y. Sup. Ct. | 1895
As all of the litigants assume that Mary T. Hat-ten died seised in fee simple of the whole of the premises, we shall rest our judgment on that assumption, without considering its validity.
All of the litigants in this action were parties to the proceedings in the surrogate’s court to probate the will, to the appeal to the general term, and -to the trial before the common pleas. The first question presented is whether the decree of the surrogate’s court, affirming the original probate entered on the verdict rendered in the court of common pleas, is a bar to this action? At common law, the probate of a will in an ecclesiastical court was not conclusive against the heir; and a judgment in an action at law, at the suit of the heir, that the testator was incapable of making a will, was not conclusive against the executor, as to the personalty, who, notwithstanding the judgment at law respecting the realty, might, if he could, establish the will, as to the personalty, in an ecclesiastical court. Montgomery v. Clark, 2 Atk. 378; Hume v. Burton, 1 Ridg. App. 277; Bogardus v. Clarke, 1 Edw. Ch. 266, 4 Paige, 623. Lord Hardwicke said in Montgomery’s Case:
“I have often thought it a very great absurdity that a will which consists both of real and personal estate, notwithstanding it has been set aside at law for the insanity of the testator, shall still be litigated, upon paper depositions only, in the ecclesiastical court, because they have a jurisdiction on account of the personal estate disposed of by it.”
By chapter 77, 20 & 21 Vict. (1857), the rule of the common law has been changed in England, and a decree of a probate court admitting a will to probate which relates to realty and personalty is binding on the heir, in case he had notice. 97 Pick. St. pp. 420-437, c. 77, § 62. The rule of the common law arose from its tenderness to heirs, and from the idea that none should be deprived of land except by a judgment of a court of law, after trial of the issues of fact before a jury. Under the first constitution of this state, wills relating to realty might be proved in the court of common pleas (1 Rev. Laws 1801, p. 178); and after 1813, in the supreme court, or in the court of common pleas (1 Rev. Laws 1813, p. 364). And surrogates had the power to admit to probate wills relating to personalty and to real estate, so far as it was necessary to authorize the issuing of letters testamentary. 1 Rev. Laws 1801, p. 317; 1 Rev. Laws 1813, p. 444. Persons aggrieved by any decree of a surrogate were authorized to appeal to the court of probates. 1 Rev. Laws 1801, p. 325; 1 Rev. Laws 1813, p. 454. Under the second constitution the court of probates was abolished, and persons aggrieved by the decree of a surrogate were authorized to appeal to the chancellor. Laws 1823, c. 70. But the court of chancery could not, by its decree, bind the heir in respect to the validity of a will, unless the question of fact had been determined in a court of law on the issue devisavit vel non,—an issue directed by a court of equity to be tried by a jury in a court of law, to determine the validity of a will. Rogers v. Rogers, 3 Wend. 505. Vanderheyden v. Reid, 1 Hopk. Ch. 408, was an appeal from a surrogate’s decree admitting a will to probate which related to real and personal property, and turned upon the
“Thus, a will of personal and. real estate may be there adjudged both valid and void, by different tribunals. This result of an artificial division of jurisdictions can never be proper, where it may be avoided. That a will should be adjudged valid because the testator who made it was of sound mind, and that the same will should be adjudged void because the same testator was insane, is a result which should never take place under one system of laws. But still more singular would be the anomaly if the same court were, in the case of a contested will of real and personal estate, bound to send the disputed question to a jury, in respect to the land, and also bound to decide the same disputed question without a jury, in reference to another species of property. Such an incongruity is avoided by taking one course of investigation, whether the bill is of real or of personal estate, or of both comprised in one instrument. This court now having jurisdiction of wills of personal goods, and also of wills of land, it may most fitly apply the same method of investigating facts to both cases.”
This language seems to indicate that the chancellor was of the opinion that a decree entered upon the verdict would be conclusive upon the heir. This judgment was, however, reversed (5 Cow. 719), but not upon the point discussed in the foregoing quotation.
In Brick’s Estate, 15 Abb. Prac. 12, and in 1 E. D. Smith, xvii., will be found a learned and instructive history of the probate courts of this state prior to the Revised Statutes, by Charles P. Daly, the accomplished chief judge of the court of common pleas.
Under the Revised Statutes, wills of real and personal property, or both, were provable before the surrogate of the proper county. 2 Rev. St. p. 57, § 7; Id. p. 60, § 23. Any person deeming himself aggrieved by the decree of a surrogate was authorized to appeal to the circuit judge of the circuit (Id. p. 66, § 55), who, in a case of a reversal upon a question of fact, was required to formulate issues of fact, and order them tried before a jury (section 57), which were to be tried in the same manner as issues awarded by the court of chancery, and new trials could be granted by the supreme court (section 58). By section 59, 2 Rev. St. p. 67, it was provided. “The final determination of such issue, shall be conclusive as to the facts therein controverted, in respect to wills of personal estate only, upon the parties to the proceedings.” In case the decree of the surrogate was affirmed or was reversed, on questions of law, by the circuit judge, an appeal could be taken to the court of chancery. 2 Rev. St. p. 609, §§ 97, 100. Under these statutes it is clear that a judgment entered on a verdict establishing a will, after a trial of issues of fact before the circuit, was not conclusive upon the heir, to whom the right remained to contest the validity of the devise in an action of ejectment; and by chapter 238, Laws 1853, he was authorized to contest the validity of a devise by an action in partition. Under the constitution of 1846, the statute authorizing an appeal to a circuit judge was changed, and an appeal was authorized to be taken to the supreme court; and, in case the decision of the surrogate was reversed upon a question of fact, the questions were directed to be tried before a jury. Laws 1847, c. 280, § 17.
This action was not brought under section 2653a, Code Civ. Proc., enacted in 1892, but was brought four years prior to its enactment, under section 1537 of the Code; and the provision of section 2653a, that “the party sustaining the will shall be entitled to open and close the evidence and argument,” is not applicable to this case, and the court did not err in denying the appellants’ motion to be given the right to open and close the case.
■ It is urged that the court erred in refusing to direct the jury to-
Our attention is called to 13 exceptions to the admission and exclusion of evidence, in the appellants’ twelfth point. To discuss each one of them, and show why they were not well taken, would unnecessarily prolong this opinion; and it is, we think, suflicient to say that none of them calls for the reversal of this judgment, entered upon the conclusion of a prolonged and carefully conducted trial. The judgments and order should be affirmed, with costs. All concur.