| NY | Jun 3, 1913
The question involved concerns the application of the Statute of Limitations to an action brought, as this one was, under section 2653a of the Code of Civil Procedure to determine generally the validity of a will and of the probate thereof.
That section provides that, with certain exceptions not important here, an action brought under its provisions "shall be commenced within two years after the will or *483 codicil has been admitted to probate." The appellants who are legatees under the will here involved were non-residents of the state and service of the summons was not made on them within the period specified. The service was, however, made within such period upon another legatee and upon the executor of the will, who were necessary parties defendant to the action.
I shall assume that the period for commencement of this action prescribed by section 2653a was not extended by the non-residence of the appellants, as might have happened under other statutory provisions for the limitation of actions, and that, therefore, no requisite commencement of the action by service of the summons upon them was made.
Section 398 of the Code, however, provides: "An action is commenced against a defendant, within the meaning of any provision of this act, which limits the time for commencing an action, when the summons is served on him; or on a co-defendant who is a joint contractor, or otherwise united in interest with him."
The two questions which arise under this section are, first, whether it applies to the special Statute of Limitations now being discussed, and, second, if it does, whether various legatees or legatees and executors under and of a will which is being attacked are "united in interest" within the last clause of said section.
The answer seems clear that said section is applicable to the Statute of Limitations governing this case. Such statutory provision simply limits the time within which such an action must be commenced. It does not attempt to place any restriction upon the methods by which the action may be begun, and, therefore, there is no reason for holding that a plaintiff in such an action should not be entitled to the benefits of a general provision telling him how he may commence his action. In the next place section 398, by its express terms, covers such a case as this, because it applies to the commencement of any *484 action covered by "any provision of this act," and of which act both sections 2653a and 398 are parts.
While the second question may afford more opportunity for debate than the one just answered, the answer thereto nevertheless seems to be reasonably certain. Section 2653a requires that "All the devisees, legatees and heirs of the testator and other interested persons, including the executor or administrator, must be parties to the action." The issue to be determined is "whether the writing produced is or is not the last will and codicil of the testator, or either." The verdict is made conclusive as to real or personal property unless a new trial be granted. If the judgment is to the effect that the writing produced is the last will and codicil, it is not only conclusive upon the parties to the action, but must expressly enjoin them and those claiming under them from thereafter maintaining any action or defense based upon a claim that such writing is not the last will or codicil or either of the testator. Conversely, if the verdict and judgment are to the effect that the writing produced is not the last will and codicil of the testator, they must necessarily establish such invalidity as against all the parties. It is clear both upon reason and authority that no such anomalous result could be tolerated as that of a judgment declaring a will invalid on general grounds as to part of the legatees and valid as to others. (1 Woerner's Amer. Law of Administration [2d ed.], § 500; Powell v. Koehler,
Thus it appears that in the face of an action involving the general validity of a will and of the probate thereof, the interests of legatees are so tied together that they cannot be separated and that a judgment rejecting or upholding the will as to one legatee will similarly affect the others. Their interests under the will must stand or fall together, and it would seem to be pretty clear that they are, therefore, "united."
It is contended in this case that this reasoning, even if *485 ordinarily applicable, does not apply because it appears that the legatee, service of the summons upon whom is relied upon as establishing due commencement of the action as against appellants, offered objections to the original probate of the will and since the commencement of this action has served an answer asking for practically the same relief as that desired by the plaintiff, and it is urged that under these circumstances she cannot be said to have an interest united with that of the appellants who desire to have the will sustained. No question of motives or good faith is involved.
In respect to this contention it seems to me that at least on the facts appearing in this case, the question of united interest must be determined by the provisions of the will, and not by some conduct dehors the instrument. If the will confers benefits upon various people the presumption follows that they are interested in maintaining it, and in my opinion it would be unwise to hold that this presumption, flowing from the instrument itself, is avoided for the purposes we are now considering by showing that some legatee at some time has done or said something, or, after the action has been commenced, has taken a position which indicated that for some reason he thought that his situation would be improved by destroying rather than upholding the will. Such a rule would make much uncertainty in proceeding under section 398 of the Code, and might lead to very unjust consequences to one who had commenced his action in accordance with the requirements thereof and in reliance upon the provisions of the instrument which he was attacking as a test of the union of interest amongst various people.
We think that the order appealed from should be affirmed, with costs, and the question certified to us answered in the negative.
CULLEN, Ch. J., GRAY, WERNER, COLLIN, CUDDEBACK and MILLER, JJ., concur.
Order affirmed. *486