34 N.Y.S. 813 | N.Y. Sup. Ct. | 1895
In the complaint it is alleged that on the 9th May, 1891, Munroe Westcott, of Oneonta, N. Y., died, being then seised in fee of a large quantity of real estate, which is in the complaint fully described; that, the plaintiff is the sister of said Westcott, and that she and certain of the defendants, who are the children or descendants of another sister, constitute all of his heirs and next of kin; that, soon after his death, a paper purporting to be his last will and testament was produced by the defendant Elizabeth P. Westcott, in and by which the testator, after devising three pieces of real estate to certain parties, devised the use of all the rest of his real estate to Elizabeth P. Westcott as long as she should live, and at her death directed that all the property left should be under the control of the defendant Ganung for the purpose of establishing and founding a hospital at Oneonta; that the will was afterwards admitted to probate by the surrogate of the county of Otsego, and
Section 1537 of the Code is as follows:
“A person claiming to be' entitled, as a joint tenant or a tenant in common, by reason of his being an heir of a person who died holding and in possession of real property, may maintain an action for .the partition thereof, whether he is in or out of possession, notwithstanding an apparent devise thereof to another by the decedent, and possession under such devise. But in such an action the plaintiff must allege and establish that the apparent devise is void.”
Section 1543 is as follows:
“The title or interest of the plaintiff in the property, as stated in the complaint, may be controverted by the answer. The title or interest of any defendant in tlie property, as stated in the complaint, may also be controverted by his - answer, or the answer of any other defendant; and the title or interest*815 of any defendant, as stated in his answer, may be controverted by the answer of any other defendant. A defendant, thus controverting the title or interest of a co-defendant, must comply with section five hundred and twenty one of this act. The issues, joined as prescribed in this section, must be tried and ■determined in the action.”
By section 1544 provision is made for a trial Tby jury of an issue of fact joined in the action.
Under these provisions it has been said that all questions arising between the parties in respect to the property, as to their respective titles and rights of possession, may be determined. Weston v. Stoddard, 137 N. Y. 119, 33 N. E. 62; Collins v. Collins (Sup.) 13 N. Y. Supp. 28, affirmed 131 N. Y. 648, 30 N. E. 863; Shannon v. Pickell, 2 N. Y. St. Rep. 160; Throop’s notes to article 2, tit. 1, c. 14, of the -Code. This would seem to be a rational view of the provisions of the Code. As said in the Weston Case (page 128, 137 N. Y., and page 62, 33 N. E.): “Circuity of procedure and a multiplicity of suits are thereby avoided, and these were the primary objects which the Code system of practice had in view.” In the Weston Case it was held that a disseised cotenant might bring the action. The action may be maintained notwithstanding an adverse possession. Hewlett v. Wood, 1 Hun, 479, 62 N. Y. 78; Malaney v. Cronin, 44 Hun, 270. In the Malaney Case an issue was whether the will was procured by undue influence. In the Hewlett Case (see 3 Hun, 736, 1 Hun, 478) the issue was over the mental capacity of the testator, as well as undue influence. A devise to one who is incompetent to take is void. Hall v. Hall, 13 Hun, 309. In the case cited it was held that under section 2 of chapter 238 of the Laws of 1853, which was similar to section 1537 of the Code, an action of partition could be brought by the heirs of a testator who had devised the property in controversy to one who was incompetent to take by devise because of alienage, and the question as to such incompetency be disposed of in the action. The plaintiff in the present case in her original complaint alleges generally that she and the other heirs at law of the deceased are the owners in fee of the property; that the apparent devise is void, for the reason that the will was not properly executed, and was not the free act of a competent testator. It is also alleged that the residuary devise to Mrs. Granung is void upon its face for certain specified reasons. By the amendment the plaintiff seeks to further allege that the devise of the life estate to Mrs. Westcott is also void by reason of her incapacity to take, the cause of which is set forth. With this amendment the allegations reach the entire ownership as claimed under the will. So that, under the complaint as amended, the validity of the devise of the entire title is attacked on two grounds: First, for reasons going to the whole will; and, secondly, for reasons affecting only the real estate in question. Under Code, § 1537, the plaintiff must allege and establish that the apparent devise is void. There is no limitation as to the causes or reasons that may be alleged. There is no prohibition against alleging all the grounds that may be claimed to exist. On the contrary, it would seem to be necessary that all should be alleged that the party desires at any time to take ad
It is suggested that the amendment involves a cause of action not triable in an action of partition. It is certainly novel in its character, but, under the decision of the Biggs Case, it involves simply the question of the capacity of the party to take, and is to be treated as any other question of incapacity. The cause of action here is for partition, and, as incident to it, the plaintiff has the right to remove the obstructions or clouds caused by the apparent devise. Henderson v. Henderson, 44 Hun, 420. It is said that Mrs. Westcott has not been criminally tried or charged, but her incapacity to take does not, under the Biggs Case, depend upon her trial or conviction, but upon the existence of the fact itself. The fact that some of the other parties may not be interested in this question is not an answer to the application for amendment. Very clearly the Code contemplated that the rights of different defendants may not stand upon the same basis. Sections 1538, 1543; Townsend v. Bogert, 126 N. Y. 370, 27 N. E. 555.
We are therefore of the opinion that neither of the grounds specfied in the order appealed from as the grounds upon which the motion was denied is sustainable. The court had the power to allow the plaintiff to allege another ground on which the devise to Mrs. Westcott was void. The amendment was, under the circumstances of the case, somewhat in the discretion of the court, and, as that has not been exercised, the order should be reversed, and the proceedings remitted to the special term for further hearing.
Order reversed, with $10 costs and disbursements, and proceedings remitted to the special term for further hearing. All concur.