2 Paige Ch. 396 | New York Court of Chancery | 1831
There is no doubt of the right of a complainant, in certain cases, to frame his bill with a double aspect, where it is doubtful what relief he may be entitled to on the facts. In such a case the prayer for relief may be in the alternative; but the relief must always be consistent with ‘ the case made by the bill. Here the complainants claim as heirs at law and next of kin to the testator, under a positive allegation that no valid will was ever made'. That part of the prayer which is for special relief, if the court should be sat-' isfied there was a valid will, is therefore wholly inconsistent with the case made by the bill. Another substantial objection is that the prayer for relief in this case is not in the alternative; but the last part of the relief prayed for is in addition to the prayer that, the will may be declared void. Where the case made by the bill may entitle the complainant to one kind of relief or another, but not to both, the prayer should be in the
1 So far as respects the personal, estate, the probate of the will, before the surrogate, is'final and conclusive; and this court has no jurisdiction to try its validity, except upon appeal from that decision, in Lynn v. Beaver, (Turner & Russ. R. 67,) Lord Eldon says: “ With respect to wills of personalty, after probate .has been granted by the.ecclesiastical. court, this court is bound by the judgment, and has no jurisdic-" tion to try whether the will is complete or not.” "(See also 2 Rob. on Wills. 50. 1 Mad. R. 1. Archer v. Morse, 2 Vern. R. 8.) This court frequently decides upon the validity- óf a will of real estate, when the question comes before it collaterally ; but if the heir insists upon the invalidity of the will, in his answer j an issue is awarded to try the question at law. It is however well settled that the heir cannot file a bill in this court" to set aside a will,- on the ground of the incompetency of the testator, if the defendant chooses to avail himself of the objection in the proper- stage of the suit. In Kerish v. Bransby, (3 Bro. P. C. 358,) Lord Macclesfield set aside a will on the ground that it was fraudulently obtained. On appeal to the house of lords, the objection was taken that the question as to the validity of the will was only triable at law; an.d his decree was reversed; The case of Jones v. Jones, in the exchequer," (7 Price’s R. 663,) was very similar to that now under consideration. The heir at law filed his bill to establish his title against a will alleged to be void for fraud and collusion, • and for various other reasons. The
If these recent decisions in the English courts of equity are correct, they are decisive of the question in this cause. And I have not been able to find any case in'which a court of equity has assumed jurisdiction to set aside a will, on the ground of the testator’s incompetency, where an objection to the jurisdiction was taken in due season.
In Townsend v. Sice, before this courts, (2d March, 1830,) the parties claimed under different wills; and after they had taken proofs in the cause, issues were awarded to try the validity of the wills. But those issues were directed without examining the question of jurisdiction, which was not raised, On the application for a re-hearing and a new trial, an opinion was intimated that the probate of the will was probably conclusive upon the parties as to the personal estate; but as the defendants would be entitled to the benefit of their objection at the hearing, the court refused to interfere at that time. If the defendant does not object to the jurisdiction, this
The demurrer .must be allowed, and the bill dismissed with costs. " "