57 N.Y.S. 791 | N.Y. App. Div. | 1899
Lead Opinion
The plaintiff sues to recover fifty dollars in each of these actions; under section 41 (2 R. S. [9th ed.] 1877), which reads: “ The witnesses to any will shall write opposite to their names their respective places of residence. * * * Whoever shall neglect to com
The defendants were subscribing witnesses to the will of George Duryea, which was executed on April 22, 1895. Duryea died on December 14, 1897, and the will was admitted to probate oh March 4, 1898. . These actions were commenced on May 20, 1898.
Section 383, subdivision 3, of the Code of Civil Procedure provides that an action for a penalty or forfeiture must be commenced within three years. The plaintiff contends that the statute did not begin to run until the neglect to comply with the statute was discovered. The defendant contends that it began to run from the moment the subscribing witnesses affixed their signatures.
The statute upon which this action is based must be reasonably construed. Its object was to enable parties interested to locate the witnesses. It was not intended to enable an aggrieved party tó recover absolute indemnity; otherwise it would not have named an arbitrary sum, not at all commensurate with the damage which might result from the neglect. It may be a violent presumption that every one is presumed to know the law, yet we must assume that the witnesses to any will know the requirement of the statute and will obey it. The penalty is intended' to compel obedience to a reasonable provision. It is clearly designed as a punishment for failure to comply with the statute, although the right to recover is conferred alone upon persons interested in the property.
It may be assumed that, ordinarily, the person “ interested in the property ” who would be cognizant of the neglect would be the testator. It is not our province to be" influenced by the difficulties of discovering the neglect and thus enforcing the statute, or to enlarge on the "fact that, unless a testator die and his will be offered for probate within, the three years after' its execution, there is no possibility that any person interested other than the testator is likely to acquire knowledge of the neglect.
The Statute of Limitations is a statute of rest, and the only exceptions to its running are in certain cases of disabilities and in the cases mentioned in subdivision 5 of section 382 of the Code of Civil
To hold the doctrine for which thei plaintiff contends would destroy the long-accepted doctrine that the -Statute of Limitations, as- already stated, is a statute of rest. No serious public interest is likely to suffer by our decision. No similar action is citejd as ever occúrñng in the courts of this -or any other State. .
Wé -are cléarly of the opinion that the statute begins to fun when the witnesses sign a will, and not when the testator dies of .the will is published or presented for probate. j
The judgment must be reversed, with costs.
All concurred, except. Woodward, J„ who read for affirmance, with whom Bartlett, J., concurred. | ' -
Dissenting Opinion
(dissenting):
I do not agree with the construction, placed by the presiding justice on section 41 of the Devised Statutes (Vol. 2. [9th ed.], 1877) which directs that a subscribing witness- to any will, who shall neglect- to write opposite his name his place of residence, “ shall forfeit fifty dollars, to be recovered by any person interested in the property devised or bequeathed, who will sue, for the same.” j ;
That the only question necessary to be considered in the case at bar is whether the three-year Statute of Limitations is-a bar to the .action is. entirely clear; but that the right' to recover tbf penalty first accrues to the interested party immediately after the execution of the will I cannot believe, and to the assumption that tlie maker of a will may in any case recover the penalty I do npt assent.'
As to the construction of statutes, Baron Parke, in Becke v. Smith (2 M. & W. 191), said (p. 194): “ It is a very useful rule, in the construction of a statute, to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads, to any manifest absurdity or repugnance, in which case the language may be varied or modified, so as to avoid such inconvenience, but no further.” This sentence has often been ■ called the golden rule of statutory construction.
To my mind there is no warrant in the language of the enactment for giving the statute in question such a construction as to. permit any testator to recover the penalty from an obliging but unfortunate subscribing witness who has neglected to add his place of residence. Indeed, it would in effect encourage those of sufficient depravity to repeatedly execute wills and recover the penalties, as long as they could obtain subscribing witnesses able, to pay and ignorant of the statute.
The statute says, “The witnesses to any will,” etc., but no one would contend that the expression was intended to include the will of a person without capacity to execute, or a foreign or revoked will. Beferring to the penalty, it says “to be recovered by any person interested in the property devised or bequeathed.” Undoubtedly the last four words mean property which has been devised or .bequeathed. No devisee or legatee, under the latter of which classes the respondent claims, can have an actual and enforcible interest in the property devised or bequeathed until the death of the maker of the will renders effectual the testamentary disposition of his property.
A brief reference to the fundamental principle of wills and a single illustration will suffice to show just when a legatee first takes his interest in bequeathed property, which is only another form of the question at issue.
A chief characteristic of a will is that it is ambulatory and revo- ' cable during the life of the testator; it can take effect only after the death of the testator, which completes, confirms and makes the will
It follows that no action to recover the penalty can be brought by the person named as devisee or legatee before the death of the testator.
The respondent also claimed a right to recover- the penalty as heir. Whether, an heir, as such, may recover the penalty in any case, it is not necessary here to decide; but that the mere: expectancy of the heir, or his inchoate right to take by descent or distribution, does not ripen into a legal interest in the property before the death of' his ancestor, is perfectly plain. And that by interest the Legislature had in mind an actual, legal, interest, and: not one which, at best, is only remote and contingent, I am entirely clear.
It is satisfactory -to know that this is the first action of the kind ever brought in this State, but while the statute remains unirepealed o.ur sympathy for subscribing witnesses should not cause ns to disregard the true rules of statutory construction and enlarge the scope of a statute which, at best, is a hardship on those who, while gratuitously performing a somewhat thankless task, without actual fault on their part, render themselves liable to a penalty at the hands of the very persons they benefit.
For the reasons above stated, I think no action to rec'over ¡the penalty accrued to the respondent oefore the.decease of the testator in 1897; that, consequently, the Statute of Limitations is not a. bar to his action and that the judgments should be affirmed."
J ndgment reverse^ and new trial granted in each case, costs to abide the event.
