10 Mills Surr. 121 | N.Y. Sur. Ct. | 1913
This is an appeal to the jurisdiction of the surrogate for relief against an alleged mistake on the part of the testatrix. It involves the whole scope of the surrogate’s present jurisdiction in a proceeding for probate and construction. The arguments of counsel in this cause suggest to my mind important questions the consideration of which can no longer be postponed or passed over by me. The arguments of counsel have been unusually thorough and profound. Prima facie the script propounded as a will in this matter is, on the proofs of its execution, given under oath, entitled to probate. Factum of will, in other words, is established. This is conceded by all the counsel in the cause. But in a rather vague way, notwithstanding this attitude, the effect of. a part of a will is sought to be rejected from probate. A mistake is alleged on the part of the testatrix, and this is made the basis of an opposition to the probate of the thirteenth and fourteenth clauses of the will propounded. This appeal is addressed to the poweis of the surrogate sitting as a probate judge, and not to his power as a court of construction under section 2624, Code of Civil Procedure.
The powers of the surrogate as a court of probate are due primarily to the statute. Code Civ. Pro. § 24*12. The section is very general in phrase. It confers jurisdiction on the surrogate “ To take the proof of wills; to admit wills to probate.” The statute does not define “ proof of wills ” or “ probate,” and
Long prior to any statutes conferring on surrogates those powers incidental to courts of construction it was held by Surrogate Bradford that the surrogate as an incident of his probate jurisdiction had power to refuse probate to part of a will if fraud or mistake was established. Burger v. Hill, 1 Bradf. 860; confirmed by Hill v. Burger, 10 How. Pr. 264. This notable decision of this very learned probate judge has been much objected to in several sta/tes while followed in others. Right or wrong, the decision in Hill v. Burger is binding on me. It may be remarked that such power is distinctly recognized in the law which is commonly taken as the examplar of our own authority in cases of doubt and difficulty not settled by the law and practice of this state. Allen v. McPherson, 1 H. L. 191; Goods of Duane, 2 S. & Tr. 590; Goods of Oswald, L. R. 3 P. D. 162; Morrell v. Morrell, L. R. 7 P. D. 68, 1882; Plume v. Beale, 1 P. Wins. 388; Billinghurst v. Vickers, 1 Phill. 187. Cases in the Ecclesiastical Courts of England, although decided
That a court of probate has no power incidental to its general probate jurisdiction to add words to a will, even if omitted by mistake, is often asserted. Theobald Wills, 29; Mortimer Probate Law, 103; 1 Jarman Wills (6th ed.), 486; Burger v. Hill, 1 Bradf. 374; Creely v. Ostrander, 3 id. 107. While this is generally true, these statements all appear to have overlooked a decision to the contrary in White v. Barber, in the year 1771, 5 Burr, 2703. This case before the Revolution is binding here. Castell v. Tagg, 1 Curteis, 298, proceeds to the same point, and there are others to the same effect. A power to strike out a will prima facie would seem to imply a correlative power to insert proper words sometimes omitted by mistake. But much depends on the Statute of Wills for the time being in force. Matter of Goods of Wilson, 2 Curteis, 853. But as this particular point is not now here, it need not be considered at this time.
The extent and the exercise of the jurisdiction of the surrogate as a court of construction are controlled either by the new section 2624, Code of Civil Procedure, or by the decisions of our own state, or in the absence of such decision by the law imposed on us by constitutional limitation. So clear a proposition needs no citation of authority. The power of courts of equity over wills is referable to the want of jurisdiction of courts of law, but more particularly to their jurisdiction over mistakes and trusts. For this purpose executors have been regarded in equity as trustees. Story Eq. Juris., §§ 164, 1067. By a “ court of construction ” a court of equity is intended. Burger v. Hill, 1 Bradf. 372. In regard to mistakes in wills there is no doubt that courts of equity had jurisdiction to correct them in some instances to be hereafter noticed. 1 Jarman Wills (4th Am. ed), 359, note. But the power of equity, independent of statute, to construe wills is referable to a jurisdiction over trusts, and where no trust is involved jurisdiction is generally to be declined. Dill v. Wisner, 88 N. Y. 153, 160; Matter of Keleman, 126 id. 73; Mellen v. Mellen, 139 id. 210, 217; McKinlay v. Van Dusen, 76 App. Div. 200.
A court of equity would in no case correct an erroneous supposition of the testator if he knew the contents of his will. Burger v. Hill, 1 Bradf. 372; Walpole v. Cholmondeley, 7 T. R: 138, s. c. Lord Walpole v. Lord Orford, 3 Ves. 42; Matter of Bywater, 18 ch. D. 17. The earlier editions of Jarman on Wills review the English cases on this point, although the sixth edition omits them. 1 Jarman Wills (4th ed.), 353-859. The language of section 2624, Code of Civil Procedure, invests the surrogate with a larger jurisdiction over the construction, validity and effect of wills than that formerly possessed by
That the surrogate may under section 2624, Code Civil Procedure, sometimes consider oral or extrinsic evidence in a proper case, in order to enable him to construe or determine the validity of a will is, in my mind, not open to doubt, and I shall remain of this opinion until directly advised to the contrary by my superiors in the appellate courts. Unless the surrogate has power to consider extrinsic evidence in a proper case of construction, falling under section 2624, the beneficial effect of that section will be nullified. The surrogate’s jurisdiction of construction will in that event be confined to the single issue of validity or invalidity on the face of the testamentary scripts probated in the proceeding. He will be unable to consider an ambiguity or uncertainty raised by extrinsic circumstances and removable in any other court of construction by extrinsic evidence. The few adjudicated cases bearing on this section cannot be taken to intend to restrict a jurisdiction so plainly conferred on the surrogate by the legislature. See Matter of Keleman, 126 N. Y. 73; Morton Trust Co. v. Sands, 195 id. 28. Such decisions do not coArer the hypothetical case. The surrogate has all the powers fairly implied in the grant of jurisdiction.
But the point here is that section 2624, Code Civil Procedure, is not an authority for the surrogate’s jurisdiction to construe the offensive clauses out of the will. If any relief is to be granted by the surrogate it must have reference to the power of the surrogate as a probate judge. In this view section 2624 of the Code of Civil Procedure becomes quite immaterial and is
Formerly and at present the only remedy in cases of mistake on the face of a will is in a court of probate. 1 Jarman Wills (6th ed.), 493, and cases there cited; Burger v. Hill, 1 Bradf. 372, 373; Allen v. McPherson, 1 H. L. 191. If such will is admitted to probate there is no remedy in any other court. Burger v. Hill, 1 Bradf. 373.
While I think that the parties before me may have by the course hitherto taken virtually put themselves out of court and technically assented to the probate of the script propounded, and in consequence I might be relieved from any further- consideration of this matter, yet this is too technical. It is not too late for them, I "think, to object to the probate of parts of this will by reason of the alleged mistake. I shall assume that this is their desire and will now proceed to the consideration of the merits of this controversy. It may be assumed that it is discernible on the face of the will that the testatrix mistook the legal effect of the trust deeds referred to by her in the thirteenth clause of her will. Does that fact, if established, enable the surrogate to refuse probate to the tenth and fourteenth clauses of a will duly executed under such mistake? That is the only question in the cause. If the mistake is of that character which may be corrected by a court of probate, only that part of the will entitled to probate will be annexed to the
While I am bound to hold, in.view of the decisions of this state already noticed, that there are some kinds of mistake on the part of testatrix, such as mistakes of draftsmen in preparain g wills or of engrossers in the engrossment of the same, or mistakes induced by fraud on testators which may possibly be corrected in this court in a proper case, yet the mistake of this testatrix concerning the legal effect or revocability of her trust conveyances is not such a.mistake as can be corrected here. The same point is adjudged in England. In bonis Davy, 1 Sw. & Tr. 263; Guardhouse v. Blackburn, 1 P. & D. 109; Harter v. Harter, 3 id. 11; Collins v. Elstone, 1893, P. 1; Beamish.v. Beamish, 1894, 1 Ir. 7; Theobald Wills, 719. The true principle applicable in this cause is, as I conceive, well stated in the sixth edition of Jarman on Wills, 486, and in this cause that passage has my approval: “If, however, the testator knows the contents of his will and erroneously supposes that it will not have the effect which the law gives it, the general rule applies and evidence of his real intention is not admissible.” In other words, such a mistake as that here alleged is not the basis of a correction by a court of probate. The cases of established intention of testators to make wills other than those actually made are not to be mistaken for cases where testators have placed in their wills just what they intended, but with effects different from those which they intended. The latter class of
The principle of all the American and English adjudications bearing on the point before me has now been briefly considered. It remains to consider two remarkable instances cited from the Roman Law in the very elaborate argument of the learned counsel for Mrs. Eisenbach. I may remark that there are many occasions in this court when it is held that the Civil or Canon Law well serves to illustrate a derivative principle frequently applied in this court, or, in the total absence of modern authority, as a guide for this court. I referred to the authorities on this point in my judgment on the Will of Van Ness, 78 Misc. Rep. 592. But I fear the instances now cited by the learned counsel in this matter are not within the limitations there stated. Let us examine them. In the Latin of counsel’s argument, the first instance is taken from the de Oratore of Cicero (1, 38, 175) as follows: “ Pater credens filium swam, esse mortwam alterum instituit haeredem; filio domum redeunte, hujus institutionis vis est nulla.” I do not find the exact quotation in the de Oratore. But the case is there mentioned in other words not materially different. On its face this case would appear to be addressed to a mistake of fact by a testator and to be very much in point here, but it is not so. Cicero, it will be observed, does not furnish us with the judgment in the case. The judgment is, however, given by Valerius Maximus (VII. 7, 1). The son in question was a soldier, and he succeeded in the case. By the merest chance I happened to have read in a late book a discussion on this very case or I should know little of it. Girard Manuel de Droit Remain, 853 et seq. The case in Cicero did not turn at all on a mistake of fact on the part of testator, but on the law relating to the exherison of a son. At that time a son was a sort of joint proprietor with the father. It was a case of condominium and unlawful for the father t >
The proponents are entitled to a literal probate of the script propounded as the last will and testament of Mrs. Henriette
Decreed accordingly.