25 N.Y.S. 940 | N.Y. Sup. Ct. | 1893
By a decree of the surrogate’s court of New York, dated January 25, 1892, there was admitted to probate an instrument adjudged to be the last will and testament of Martha K. Peaslee. It contained a bequest to Frances M. Peaslee, a daughter of the testatrix, on.account of which the executors made payments to her on the dates and in the amounts following: January 28, 1892, $2,500; May 24, 1892, $4,500,—in all, $7,000. Subsequently, and within the time allowed by law, Frances M. Peaslee filed a petition in the surrogate’s court of New York, praying for a revocation of the probate of such will. Citations were thereupon issued. The executors, appearing in response thereto, answered that they had made the payments above referred to; that the petitioner had not refunded, nor offered to refund, the same; and demanded a dismissal of the proceeding.
“Two of tlie plaintiffs have received, in whole or in part, the legacies given them by the will, and, having accepted the benefit of the provision made for them, cannot be heard in opposition to other parts of the instrument, except -by proof of circumstances showing that they had not intelligently elected to take under the will, rather than in opposition to it, and a return of all that ‘has been received by them.’ ”
And he quoted with approval Lord Redesdale’s decision in Birmingham v. Kirwan, 2 Schoales & L. 444, that this rule of election is applicable to every species of instrument, whether deed or will, and to be a rule of law as well as equity. The rule is also asserted in Havens v. Sackett, 15 N. Y. 365. In Mills v. Hoffman, 93 N. Y. 181, which was an appeal from a decree of the surrogate’s court compelling an administrator to account, the objection overruled by that court was that the petitioner was barred, because of an entry of judgment, in which she was a party defendant, although an infant, and the subsequent distribution of the estate in pursuance of the judgment, by which the moneys came into the hands of her guardian, and upon her majority to her. After this latter, event, the judgment was vacated and set aside as to her, on the ground that the appointment of a guardian ad litem to represent her had been irregular, and the court of appeals held that she was estopped from controverting in the surrogate’s court the judgment under which she had received benefits. In Re Soule’s Will, (Surr.) 3 N. Y. Supp. 259, the right of a legatee who had received moneys under a will to claim revocation of probate without making full restitution to the executors was denied. Numerous cases have arisen under wills where this principle has been applied. Hamblett v. Hamblett, 6 N. H. 333; Van Duyne v. Van Duyne, 14 N. J. Eq. 49; Weeks v. Patten, 18 Me. 42; Smith v. Guild, 34 Me. 443; Hyde v. Baldwin, 17 Pick. 303; Smith v. Smith, 14 Gray, 532; Bell v. Armstrong, 1 Addams’ Ecc. 365; Braham v. Burchell, 3 Addams’ Ecc. 243.
The learned counsel for the appellant, while citing no authorities asserting a contrary proposition, has carefully analyzed and elaborately discussed nearly all the cases we have cited, in order to make it appear that they are distinguishable from the case at bar. In their facts they are different from this case, and they differ from each other, but they all tend to make good the assertion which may be found running through the books, that he who receives money or property or a benefit of any kind under an instrument, whatever its character, or his relation to the maker of it, cannot question the instrument, in whole or in part. But the
But the appellant urges that, granting the existence of the principle contended for, and its applicability to the petitioner’s situation, still the surrogate’s court, not being a court of equity, wasi without authority to determine the question. Section 2647 of the Code, which provides who may petition for the revocation of a will, confers, we think, upon the surrogate’s court,. the authority to pass on the proposition presented here. It does not provide that any one of the next of kin may within one year petition for a revocation of the probate, in which event the proceedings described in that ánd the following sections shall be had. On the contrary, it provides that “a person interested in the estate of the decedent may * * * petition.” This clearly means that the person making the application must have a substantial interest in the result at the time he files his petition. The fact that he is one of the next of kin is not sufficient if, by assignment or otherwise, he has disabled himself from sharing in the estate should the will be revoked. The aim of the statute is not to encourage vexatious contests, but to secure to a party who, but for the will, would receive a larger share of the estate than bequeathed to him by it, a year in which to ascertain all the facts surrounding its execution, and to determine whether to assume the responsibility of making a contest. In order to avail himself of