108 N.Y.S. 489 | N.Y. App. Div. | 1908
This is an appeal from a decree of the surrogate of Mew York county admitting to probate the will of David Goldsticker, deceased, dated January 17, 1895.
David Goldsticker died,.unmarried, on October 22,1905, leaving two papers purporting to be his last will and testament, one dated January 17, 1895, and the other dated July 6, Í905. He left four brothers, Louis, Martin, William and Samuel, and two sisters, Fanny Bacharach and Eosa Schleissner, all of whom were of full age.’ The will of 1895 left all of decedent’s property to his brothers Louis and Martin. The.will of 1905 gave an interest in certain real estate to Eosa Schleissner and divided the residue of his estate between her and his four brothers.' The paper purporting to be a will executed in 1905 was offered for probate by Samuel Goldsticker, who was named as an executor therein, and Eosa Schleissner appeared in that proceeding in support of the probate. Louis and Martin Gold-sticker and Fanny Bacharach opposed the probate, and William Goldsticker also appeared in the proceeding.
The objections relied upon' by Samuel .Goldsticker and Rosa" Schleissner were that the paper propounded was ' not the last will and testament of the deceased, having been revoked long prior to his death, and that a later and last will and testament had been made by the deceased long after the will now offered for probate.
It appeared upon the trial that the contestants, to support these objections, relied upon establishing the will of 1905, to which probate had been refused. The contestants also alleged that the will of 1895 was' one of three mutual wills made by the deceased and his .brothers Martin and Louis Goldsticker, which had been executed with the understanding and agreement that said wills 'should remain operative only while all three of them should remain unmarried, and that subsequent to the making of said wills both Martin and Louis Goldsticker married, by reason of Which- facts, as the contestants insisted, all of the mutual wills, including that of the deceased (who had not married) were and became revoked. This last ground of objection was properly overruled by the surrogate. Assuming the will of 1895 to have been originally well executed and valid it could be revoked only by one of the means prescribed by statute. (2 R. S. 64, § 42 et seq.; Delafield v. Parish, 25 N. Y. 9; Lovell v. Quitman, 88 id. 377; Matter of Davis, 105 App. Div. 221.) Mo where in the statute can there be found a provision that an agreement dehors the will -that it shall remain operative only until a certain event occurs, will work a revocation of the will upon the happening of the specified event. - The marriage of Martin and Louis Goldsticker may have relieved the deceased from any contractual obligation not ■ to revoke his will in
Upon the trial the contestants offered in evidence the alleged will of 1905 to establish their objection that the will of 1895 was not the last will of the deceased and that it had been revoked. The proponent read in evidence the decree refusing to admit the later will to probate and there was thus raised the question as to the binding effect of said decree as an adjudication. The appellants insist that a decree of the surrogate refusing probate is neither prima facie nor conclusive proof of its invalidity in any other proceeding in the Surrogate’s Court, even as between the same persons who were parties to the proceeding in which probate was denied. They, therefore, claimed the right to try over again in this proceeding the question as to the validity of the will of 1905, seeking to so far establish it as the will of the deceased as to work a revocation of the will of 1895. They rely upon the phraseology of sections 2625, 2626 and 2627 of the Code of Civil Procedure. Section 2626 provides that “ a decree admitting to probate a will of personal property, made as prescribed in this article, is conclusive as an adjudication upon all the questions determined by the surrogate pursuant to this article, until it is reversed upon appeal or revoked by the surrogate, except in an action brought under section twenty-six hundred and fifty-three-a of this act * * ■ Section 2627 provides that “ a decree admitting to probate a will of real property, made as prescribed in this article, establishes, presumptively only, all the matters determined by the surrogate pursuant to this article. * *■ *.’? Section 2625 provides that “ Where the surrogate decides against the sufficiency of the proof, or against the validity of a will, or upon the construction, validity or legal effect of any provision thereof, he must make a decree accordingly ; and, if required by either party, he must enter in the minutes the grounds of his decision.” ■
Our attention is called to the fact that the Code is careful to express in each case the effect as an adjudication of a decree admitting a will to probate, while no such express provision is made as to a decree denying probate, whence it is argued that inasmuch as the Code has omitted to say that a decree denying probate has force, either conclusively or presumptively as an adjudication, it must be
We are, therefore, of opinion that the surrogate was right in receiving the fprmer decree as conclusive" evidence of the invalidity o.f the will of 1905, and if that will was invalid it was certainly inoperative to revoke the will .of.. 1895. "If the sister named as devisee of the real estate in the will of 1905 seeks to establish her title under that will she- may do so in ..an appropriate action, and. under Corley v. McElmeel the decree refusing to admit it to probate will not be an insuperable obstacle to her success. If the other contestants of the will of 1895 still insist that it was revoked by the later will, and, therefore, was not the last will of the. deceased,, it is still open to them to test the question by an action under section 2653a of the Code of Civil Procedure, wherein by express words of the statute and by analogy with the reasoning of Corley v. McElmeel, both the decree admitting the will of 1895 to probate and the decree refusing probate to the will of .190.5 will be but prima facie evidence of the validity of the wills- respectively passed upon.
The decree should be affirmed, with costs:
Patterson, P. J.,. Ingraham, Clarice and Houghton, JJ., concurred.
■ Decree affirmed, with "costs.