2 Paige Ch. 11 | New York Court of Chancery | 1829
The answers and affidavits on the part of the defendants shew that neither the solicitor, nor complainant who swore to the truth of the bill, had any foundation for their belief as to the incompetency of the testator, or the fraud in obtaining the will. The injunction cannot be sustained on that ground; even if the court had the power to set aside the will as to the personal estate after it had been proved in ample form before the surrogate and after the complainant who contested it there had for a- period of ten years neglected to appeal from that decision. But a new ground is now taken, which is, that if the will is valid, the legacies to the natural children of the testator are void because there is no sufficient description of the legatees who were intended by the testator. It probably would be a sufficient answer to this objection, that no foundation for relief on that ground is laid in the bill. If the allegations in this bill are true, there never was any valid will; and there is nothing in the bill to show that the complainant makes any claim, as the party beneficially interested under the will, in consequence of the insufficient description of the legatees. The whole scope of the bill as well as the relief prayed is to set aside the will as absolutely void, in consequence of the incompetency of the testator and the fraud of the defendant. But as the question as to the right of the natural children under this will has been raised and fully argued, it may be proper to look into it for the purpose of saving trouble and expense to the parties in the further proceedings which may take place.
From the facts disclosed it appears that the testator was never married ; but had for a long time lived and cohabited with M. Smith, in a dwelling house owned or provided by him and furnished at his expense ; during which time, between June, 1806, and March, 1815, she had by him five children. AH
In the case before me the facts are much stronger to shew who were intended. The testator could not have intended legitimate children which he might have by a future marriage ; for one of the objects of his bounty is described as his son John, and the others as his daughters. It would require too great a stretch of credulity to suppose the testator not only contemplated a marriage and the birth of issue, but that he also anticipated he should have but one son, who would be named J ohn, and that all the other children of the marriage would be daughters ; that he should die before they arrived of age, and that they would all need testamentary guardians. To give such a construction to this will would indeed be reversing the rule that the court should endeavor to ascertain and carry into effect the intention of the testator. It would be following a technical principle for no other purpose but to defeat the manifest intent of the testator.