14 N.Y.S. 28 | N.Y. Sup. Ct. | 1891
The plaintiffs, with the defendant Agnes Ethel Tracy, the latter declining for reasons of her own to join with the plaintiff in this action, are the executors of the last will and testament of Francis W. Tracy, late of the city of Buffalo. Mr. Tracy died on the 15th day of April, 1886, leaving a last will, with four codicils thereto. The testator left him surviving Agnes Ethel Tracy, his widow, and Harriet F. Tracy Thompson, his only child and heir at law. The latter was an infant, between 18 and 19 years of age, at the time of the death of her father. At his death Mr. Tracy was seised in fee of four valuable parcels of real estate in Buffalo, and of a large amount of personal property. By the terms of the second article of the second codicil the sum of $100,000 was set apart and placed in the hands of the executors as trustees, the income of which should be paid to the daughter, Harriet F. Tracy Thompson, during her life-time, the principal to be divided at the time of her death among her issue, if any; if none, then to become a part of the residuum otherwise disposed of. Upon the proceedings befoie the surrogate for the probate of such will, the special guardian, appointed by the surrogate, of the infant, Harriet F. Tracy Thompson, interposed an answer putting in issue the mental capacity of the testator to make the will and codicils, but the surrogate finally sustained the will, and admitted the same to probate. On appeal, this decree was affirmed by the general term of the supreme court.
At the time the will was offered for probate, Harriet F. Tracy Thompson was nearly but not 19 years of age. She had been separated from her father in early infancy, had taken her mother’s family name of Robinson, and had resided with her mother’s relatives in and near the city of New York. The mother, having been estranged and divorced from her father, cherished bitter feelings towards him, which, to a considerable extent, had influenced the daughter also. The reasons assigned, however, by the testator for giving no larger portion of his estate to his daughter, reflected in no respect upon her; but they are stated by him to be that her mother was possessed of an ample fortune, and in addition thereto a handsome provision had been made for her by the testator’s mother. The respondent, upon the return-day of the probate of the will, took no part, either personally or by a general guardian, in the selection of a special guardian who should appear for her in the proceedings in the surrogate’s court. The surrogate thereupon, of his own motion, in pursuance of section 2530 of the Code of Civil Procedure, appointed a competent and capable member of the bar as special guardian, by an order duly entered May 11, 1886. The guardian consented in writing thus to assume the duties of taking care of the interests of the infant. He took vigilant measures to possess himself of his ward’s case. He conferred, very properly, with her and the counsel who had previously been applied to by her and her maternal relatives, and subsequently filed an answer prepared by such counsel, submitting, in a general way, the rights of the infant to the court. The special guardian employed as counsel the same person that had been consulted by the infant and her relatives. The special guardian acted throughout in good faith, and contested the probate of the will vigorously, upon the ground, generally, that the testator had not testamentary capacity at the time of the execution of the instrument, and to that end there were called by the surrogate, at the instance of the special guardian, in behalf of the contestant, 36 witnesses. The daughter herself was called as a witness by her special guardian, but not upon any subject material to the contest made to the probate of the will. The surrogate, as stated above, finally admitted the will to probate, and certified, in accordance with section 2623 of
The second article of the second codicil must be construed in connection with the fifth article of such codicil. Taken together, as the learned justice at special term has decided, they constitute a conditional bequest to the executors, as trustees, determinable in the event that the daughter, in person or by another, contests the probate of such will. This is not an unlawful provision, when contained in a last will and testament. The testator, having the right to say to whom his property shall be bequeathed and devised, had the right, also, to make it as a condition of any gift that the recipient thereof shall not contest the probate of the will. Cooke v. Turner, 14 Sim. 493, 15 Mees. & W. 727; Evanturel v. Evanturel, 31 Law T. (N. S.) 105, L. R. 6 P. C. 1; Hogan v. Curtin, 88 N. T. 162; 2 Jarm. Wills, 58; Schouler, Wills, 605.
Such contest, however, the special term held was instituted and prosecuted by and in the name of the special guardian, and was not the contest of the daughter, in person or by another, within the fifth article of such second codicil. It seems to me, however, that such contest was the contest of the daughter, and not of her special guardian. It is the infant who is always summoned and cited to appear in court, and who is regarded as the real party. It is true that the infant answers in the surrogate’s court by special guardian, in the supreme court by guardian ad litem, but the answer is that of the infant party, and the judgment is in favor of or against the infant party, and not in favor of or against the person who is selected by the court to take care of his interests. Phillips v. Dusenberry, 8 Hun, 348; Insurance Co. v. Schwaner, 36 Hun, 373; In re Hawley, 100 N. Y. 211, 3 N. E. Rep. 68.
I cannot regard the contest, as made before the surrogate, as that of the guardian, and not of the daughter. While it is true that the guardian, after his appointment, had substantially full control of all the proceedings in court, yet the contest, as carried on by him, was that of his ward, and not of his own. I see no way, except as hereinafter, stated, of relieving the infant from the palpable fact that there was a very serious contest made over her father’s will, by another, in her behalf. The action taken in such contest hound, so far as any decree of the surrogate could bind parties upon the question of the testamentary capacity of the testator, as completely as though she had been of full age, and had the selection of the counsel who should conduct her defense to the probate of the will. Was it the intention of the testator to cover only the case where there was a personal and responsible act taken by one of the legatees against the will? I think not. He intended to embrace all cases where a contest should be made to the probate of the will, where, by the judgment rendered upon such contest, the provisions of the will might be defeated. In such a case it was his obvious purpose to deprive the party of any benefits under the provisions in the will. It follows, therefore, as it seems to me, that the respondent failed to observe the condition upon which the bequest was made to her, and consequently that she cannot now, having been defeated in the probate, receive anything from the estate, unless the provision in question, when aimed at an infant, is to be deemed void, as being against public policy.
It may well be said that the public has no concern with the question whether the will of a certain person shall be denied probate upon the ground of want of testamentary capacity, and that, consequently, a bequest condi