79 N.Y.S. 337 | N.Y. App. Div. | 1902
The theory of the complaint in this action is that the plaintiff is éntitled to recover as the sole heir at law and next of kin of Richard Garvey, who was an uncle of the blood and one of the heirs at law of Andrew J. Garvey, deceased. The complaint avers that Richard! Garvey died a resident of the city of Boston in the State of Massachusetts on or about the 22d day of September, 1898, leaving a. pretended last will and testament, which was void by reason of the testator’s incapacity to make the saíne; that Andrew J. Garvey was. at the time of his death seized of certain lands and tenements situate in the city and county of New York, and that he left a last will, and testament which was duly admitted to probate by the surrogate of the county of New York as a will valid to pass real and personal property; that by virtue of its provisions and codicil thereto-attached he devised all of his said lands and property to a trustee-named in the will upon certain trusts therein specified; that the-said will and codicil gave to the said trustee full and complete-, power to sell and convey the whole of the real estate devised by the will; that after the admission of the will to probate the trustee-exercised the power of sale contained therein and sold the property :. that after the said will of Andrew J. Garvey was admitted to probate all of the persons and corporations entitled to take thereunder,, or claiming an interest under the will, except this plaintiff, entered into an agreement in writing before the commencement of this action whereby they agreed that the proceeds of the sale of said property should be divided and distributed among the persons and corporations entitled thereto in specified proportions, and that out of the said sums so realized $29,212.63 became payable to Richard Garvey, had he been alive to receive the same; that the said will of' Richard Garvey was procured to be probated by the legatees and: beneficiaries therein named and by the executor thereof in the Pro
It is evident that the disposition made of' the demurrer by the learned court below is sound and should be sustained upon this •appeal. It is nowhere averred in terms in the complaint that the will of Andrew J. Garvey was invalid, nor is such fact made to .appear by any of the averments contained therein. Assuming that .the devises of property to charitable corporations under such will were of more than one-half of the estate and, therefore, invalid, it would be essential to establish such fact by proof, and a complaint ■which fails to aver it is bad. (Garvey v. Union Trust Co., 29 App. Div. 513.)
Aside from this consideration, however, it clearly appears from the will of Andrew J. Garvey that it worked an equitable conversion into personalty of all of his real estate. The devise was to a trustee, with power to sell and pay over the proceeds, and the averment of •the complaint is that this power was executed, and out of the execution arose the sum which the plaintiff seeks to recover in this action. 'The proceeds of the property is personalty, unimpressed with any ■character of real estate. (Horton v. McCoy, 47 N. Y. 21; Kalbfleisch v. Kalbfleisch, 67 id. 354.) There was nothing, therefore, which descended under the will of Andrew J. Garvey which the plaintiff could take as heir at law, and no right remains in her which -she could enforce in such capacity against such estate or the pro
It also appears by the averments of the complaint that under and by virtue of the terms of the will of Richard Garvey the plaintiff herein is not entitled to have or receive any of such estate. She is not named therein as legatee, nor does she take anything thereunder. So long, therefore, as the probate of this will stands, she is ■concluded from taking anything, and as the testator resided in the State of Massachusetts, and the will is duly admitted to probate in that State and the executor has qualified thereunder, she must be limited in whatever rights she has in and to this fund to a proceeding in the courts of Massachusetts. It is sufficient to say now that not only does the complaint fail to show a case entitling her to recover this fund, or any part of it, as heir at law or next of kin of Andrew J. Garvey, but by its affirmative averments she has succeeded in showing that in each capacity she has no standing to maintain this action. In addition thereto, she seems to have gone further, and also by affirmative averments established that she has no right to have or receive any of this fund. So long as the decree of probate of the will of her ancestor stands unreversed, she is not entitled to take in any capacity whatever.
Van Brunt, P. J., Patterson, Ingraham and Laughlin, JJ., concurred.
Judgment affirmed, with costs, with leave to plaintiff to plead over on payment of costs in this court and in the court below.