103 N.Y. 156 | NY | 1886
Samuel Wood made his will in July, 1872. He was possessed of a large estate, and after giving considerable sums of money to his relations, provided through trustees for the founding and endowment of an institution to be called "The Samuel Wood Benevolent Institute," and a hospital similar to the institution known as St. Luke's Hospital in New York, at the same time declaring the purpose and object of the institute to be "to assist and maintain" such of his relations and kindred, with certain exceptions, as shall in the opinion and judgment of his trustees need assistance, and gave to those relations a right to free beds, bedding, attendance, support and maintenance in the hospital during life, if they shall so long need assistance, and a decent burial after death." On the 20th of March, 1875, he executed a codicil in due form, by which he removed the hospital and the institute from the roll of his beneficiaries, and named in their place "The Samuel Wood College of Music," which he desired to found. He dropped one S. from the executors' list, and substituted Elmer, the respondent, and Abraham Hewlett in his place. The testator died on the 20th of March, 1878. On the twenty-sixth of that month, Hewlett presented the will and codicil to the surrogate of New York for probate, stating in his petition that he was a nephew and the only heir and next of kin of the deceased. No opposition was made to the will, and it was admitted to *159 probate on the 20th of April, 1878. The executor S., above referred to, opposed probate of the codicil, but afterward withdrew from the contest, and that instrument was also admitted to probate on the 10th of October, 1878. On the fourteenth of that month Pearsall, one of the legatees under the will, claiming that he was co-contestant with S., and that the latter's withdrawal from opposition without notice to him, rendered the decree irregular, and insisting that the codicil was invalid on the grounds, first, that the testator was of unsound mind and incompetent to make the same, second, that he was unduly and improperly influenced thereto by Elmer, one of the executors and other interested parties to him unknown, applied to have the probate of the codicil vacated and to be heard upon his objections. Thereupon the surrogate made an order that he be allowed to contest the probate of the codicil, and with certain other persons proceed in regard thereto, and give such further or additional evidence in regard to it as they might be advised, and the question of vacating the probate of said codicil be reserved until the close of said evidence and the determination of such contest; and that subject to the right so given the said decree admitting the said codicil to probate, and the letters testamentary issued thereon, should stand, with powers to the executors of the will to administer the estate under the will, so far as the same has not been modified by the said codicil.
Upon such testimony as the parties produced, it appeared to the surrogate, according to the recital in a decree made December 31, 1881, that the said Samuel Wood at the time he executed the codicil was of sound mind and under no restraint or influence of fraud, and he adjudged that the decree of October, 1878, admitting the same with the will to probate as the will and codicil of the deceased, be ratified and confirmed. The motion, therefore, to open the decree of October was denied, and the letters issued thereon to Elmer were ratified and declared valid. It was further adjudged that the motion by counsel for the proponent, William Elmer, for allowance to his proctor and counsel be granted. And the amount thereof, *160 as well as allowances to the proctor and counsel for said contestant, Pearsall, be adjusted by an order to be entered at the foot of the decree.
The notice and petition of appeal recites that the only person intended to be made respondent is William Elmer. The appeal is from the whole of both decrees of the surrogate, viz.: that of October, 1878, and that of December, 1881, except so much as relates to the probate of the will. The General Term affirmed the decree in all respects. We do not find in the record that the appellants made any contest before the surrogate, and as it is conceded by all that the will is valid and must stand, it is exceedingly difficult, in view of the provisions of that instrument, to find in what manner they are, within the meaning of that term, "aggrieved" by the probate of the codicil. They might, indeed, share in the privileges of the institute and hospital, provided the trustees were of opinion they needed assistance, but an interest so contingent, and an enjoyment so dependent upon the discretion of another, can hardly constitute a right capable of enforcement in a court. Moreover, the record before us shows that as to them, the decision of October was final. It would seem, therefore, that the appeal might very well have been dismissed by the Supreme Court, upon these grounds, which are also set up in the answer to the petition of appeal. The whole case, however, was considered by that court, and the appellants fail to satisfy us that there is any error in its decision.
In one of the printed briefs submitted to us in their behalf, we find a point made against that part of the decree of December, which provides for costs to be paid the proponent Elmer, and costs to be paid the contestant Pearsall. First. As to Pearsall; he is not a party to the appeal, and the question affecting him cannot be considered. Second. As to Elmer; it does not appear what, if any, allowance has in fact been made to him, and the proceeding in that respect, so far as the learned counsel for the appellant has directed our attention to it, seems incomplete, and in its present condition is not the subject of review. *161
The remaining propositions in the same brief present a very material question, and if well founded, they show that upon the merits the surrogate and General Term have in some inexplicable way been misled. These propositions are more than once repeated, and are placed upon the intelligible and plain assertions that by the undisputed evidence it is shown first "that prior to the execution of the codicil, the decedent was in such a condition of mental enfeeblement or senile decay as to render him an easy prey to undue influence; second, that taking advantage of decedent's mental condition, Dr. Elmer practiced upon him the grossest fraud and the rankest kind of undue influence, for the purpose of inducing him to make the codicil in question; third, that the execution of the codicil was the result of fraud and undue influence practiced upon him by Dr. Elmer; fourth, that decedent continued in a state of mental enfeeblement or senile decay, from the time of the execution of the codicil until his death."
Upon this statement a question of law is presented. If there is evidence leading to a different conclusion, it at most presents a case of conflict, and this alone, if our former decisions (infra) are correct, would not permit an interference with the judgment of the Supreme Court. In such a case the duty of weighing and comparing, and of drawing inferences from evidence is imposed upon the surrogate, subject to review by the General Term, whose judgment, as we have frequently held, is quite independent of any view we might take of the same matter. (Davis v. Clark [Nov., 1881],
The subdivision was again amended in 1883 (Chap. 229) by inserting a provision that "all appeals to the Court of Appeals from any order or judgment of the Supreme Court affirming, reversing or modifying any such order, sentence, decree or determination of a Surrogate's Court, shall be taken and perfected, heard and decided in conformity to the laws and practice regulating appeals from orders, sentences and decrees of Surrogates' Courts, and the hearing and decision thereof, in force in this State on the 30th day of April, 1877."
This is the provision relied upon by the learned counsel for the appellants in support of his contention as to the duty of this court to pass upon the facts according to the weight of evidence. We are unable to give it that effect.
The former Code (Laws of 1849, chap. 438, § 471) did not include appeals from Surrogates' Courts, and it was held that they remained subject to the Revised Statutes, and that upon appeal to this court from the judgment of the Supreme Court, in a case arising before the surrogate, the facts and the law were both to be examined, upon the ground that such appeal was upon the merits and authorized by the general language of section 11 of the Code of Procedure which gave the Court of Appeals exclusive jurisdiction to review upon appeal every actual determination made at a General Term of the Supreme Court, and was, say the court, "unrestricted by any other statute" (Schenck v. Dart,
It should be noticed that these provisions are applicable to every court in which the appeal may be heard, and, therefore, to the Court of Appeals as well as to the Supreme Court. Particular provision was made in regard to appeals to the Supreme Court (Art. 4, chap. 18, § 2570), as to who might appeal, within what time, and how and upon what papers, and upon questions of law, or fact, or both, and when upon the facts, it was declared that the appellate court should have the same power to decide the questions of fact which the surrogate had, and might, in its discretion, receive further testimony or documentary evidence, and appoint a referee. It was evident that these provisions applied to the Supreme Court only, and we so held. (In re Ross,supra.) The jurisdiction of the Court of Appeals is designated and created by law. It has no other. (Batterman v. Finn,
It is now argued by the appellants that the amendment of 1883 (supra) abrogates the provision of section 1337, so far as appeals from cases originating in Surrogate's Court are concerned, and restores, as by re-enactment, the laws relating thereto, which were in force on the 30th of April, 1877. At the time of its enactment, section 1337 had been construed by us in repeated instances, beginning with Davis v. Clark (supra) and followed by In re Ross and Marx v. McGlynn (supra), in all of which we placed our decision expressly upon the prohibition contained in section 1337 The legislature of 1883 must be deemed to have had in mind the whole law, not only as expressed *166 by the statutes, but by the decisions of the court concerning them, and it cannot be supposed that they intended, by the later act, to interfere with the policy of the earlier one, which, dealing with the jurisdiction and powers of this court, emphatically declared that a question of fact arising upon conflicting evidence cannot be determined by it, and expressly excepts such questions from those which an appeal brings up for review. The act of 1883 (supra) does not enlarge the appellate power of this court, but only regulates such appeals as by existing laws were permitted, and does not purport to add to the questions to be reviewed. In the absence of a contrary intention plainly expressed, it must be presumed that the legislature did not intend to interfere with the prohibition so distinctly (§ 1337) imposed upon the court, and this view is supported by a consideration of the language of section 1338, where, anticipating that there might be a conflict in certain cases in the courts below, and consequent reversal of a judgment of the trial court upon a question of fact, the legislature, in the most formal and explicit words, have declared that, in such a case, authenticated in a prescribed manner, the Court of Appeals must review the determination of the General Term upon the questions of fact as well as those of law. It is not probable that less clear or unambiguous words would have been selected, if the purpose of the act of 1883 (supra) had been to extend that jurisdiction over judgments of the Surrogate's Court, relieved of the condition expressed in section 1338, or by that act as to such judgments, to frustrate and destroy the limitations imposed by section 1337 (supra).
We see no reason, therefore, to depart from the decisions already made concerning our jurisdiction.
The judgment should be affirmed, with costs to the respondent to be paid by the appellants.
All concur.
Judgment affirmed. *167
