| N.Y. Sup. Ct. | Oct 15, 1854
No actual marriage between the plaintiff and the late Mr. Hill has- been proved. She does not ,'eyen aver it in her..complaint.. On the contrary, she-claims under -the will, notas widow, but as being .the same person designated in the will by the description of “ Elizabeth Parker,” and as the mother-of an infant described in it also, not as the child of the testator; but as “ Florence, the child of said Elizabeth.” Although, therefore, the plaintiff and the testator cohabited together as man and-wife,-it is obvious: they neither were, nor did they consider themselves as married persons. .
The next point relates to the effect of the will.
“ All his real estate, of every description,” the testator gives to his mother and sisters—all his personal, to Elizabeth Parker (who nowr calls herself. Elizabeth Hill,), for life, and then to her child.
The testator, it .appears,- was on a visit to Saratoga. While there he was -taken suddenly ill, sent for a lawyer to draw a will, signed' it, and a few hours after died. On being asked whether he had any real- estate, he said yes—referring- to a house and -lot in Greenwich street, of which, however,, he had only a leasehold. title. It is not pretended that he had any other property, which could in anyway be denominated, real estate. - It is. clear,, therefore, that when he. directed his counsel so to draw the will as to give the real estate to his mother and sisters,- he meant the leasehold property referred to. Such, too, is the common understanding in. such cases. But, techniíally, leasehold is not . real estate. So that the lawyer, by
Accordingly, when the instrument came to be proved before the surrogate, he allowed it only as a testamentary disposition of all the personal estate, except the leasehold interest. That he adjudged to be undevised, and.the consequence would be that it went to the mother, as his next of kin. Elizabeth Parker, notwithstanding, files her bill, praying that the executor may be compelled to assign the lease to her; in other words, that she and her child may have all, and the lawful representatives nothing.
It is a sufficient answer, it seems to me, to her claim, that the surrogate has passed upon it already, and that his decree in such a case cannot be reviewed collaterally. Until reversed on appeal regularly taken, which now it cannot be, it is conclusive. To the surrogate the law has confided the jurisdiction c< to take the proof of wills.” Here was an instrument purporting, on its face, among other things, under the designation of “ personal property,” to bequeath a certain leasehold interest. It was propounded for probate. After hearing all parties, the surrogate decides that so much of the instrument is not the will of the testator, and for that reason excepts it from probate. It is conceded, that had there been an interlineation, the surrogate, on proper proof, might have rejected the matter interlined, without disturbing the rest of the will. And is not this, in effect, the same case 1 The legacy in question was inserted by mistake; it was, in other words, no part of the testator’s will. So the surrogate thought; at all events, so he adjudged.
I do not see that I have any power—and I certainly, under the circumstances, have no inclination—to review his decision in an original suit, and one, too, having, as it would seem, no very controlling equity to recommend it, and entirely at variance, in its object, with the clearly established intent of the testator.
The bill must, therefore, be dismissed with costs.