5 N.Y.S. 32 | N.Y. Sur. Ct. | 1889
The important question which must be decided now, and which has been so ably argued on both sides, with the extraordinary and unusual amount of industry which has been employed by both sides in atiempts to ascertain the true rule which governs the rights of the parties here, and which can hardly be magnified, because it reaches beyond the mere question of evidence, is whether Mrs. Wetherell shall be held qualified or not as a mere matter of evidence. It not only has been said by her distinguished counsel, but it is obvious to me, that it may be quite immaterial to her. I have not heard her declare, because, perhaps, she has had no opportunity to make such a declaration, what her own private wishes ever were, or are now, in regard to the admission of this will to probate; but I have heard her father declare inmost emphatic terms that it was his wish now, and always had been his wish; it was now and always had been his belief, that the will of Mrs. Stewart was a valid instrument, and ought not to be set aside, and that he had no part or lot in any proceeding of any kind, at least he had never intended to have, to set it aside. However that may be, it seems clear to my mind that it can have no influence at all upon the ruling which must be made on the question submitted. I am gratified that the examination which I myself have made with a good deal of care of this question—and have reduced to a memorandum on some sheets of paper here what my notions are on the question—anticipated all the suggestions that have been made by counsel on the respective sides today, as I think will be observed when I shall read what 1 have written. Of course I need not say that I have written down the result of my own exami
From my reading of this agreement it seems to me that it might be plausibly argued that the legacy to Mrs. Wetherell, although personalty, the benefaction to her, her interest, her rights under the will; are beyond the mere legacy, and it includes and involves her rights in real estate; because a residuary half of this estate, after the necessary expenditure on the cathedral, may, the entire body of it, go to her, and that must necessarily include an interest in real estate, and, if that be true, then there is no question but what this condition in the seventh paragraph of this codicil is valid as to that, under the English rule. And again, in that same connection, the language of the seventh clause, which is so familiar to all that perhaps I need not read it, or any part of it, but for the sake of great certainty for the point that I make, I will read a few words. Mrs. Stewart says: “Such act or proceeding shall operate and be effectual as a release of all claim on the part of such heir, next of kin, or legatee to any part of my property or estate, and any provision of my will in favor of such party I do hereby abrogate, annul, and make void.” Well, it occurs to me, and has all along the examination of this question, and during the argument, whether a gift over must necessarily be found in sucha condition in express words; whether you may not look for the gift over by direct implication, and necessary and obvious inference, from the words used. And, if so, the point is suggested to my mind whether, under this clause, such benefaction under this will as a legatee, or a person receiving something under it, shall go in case of a violation of this condition to the residuary estate; and is not that what is clearly to be implied and inferred from the condition itself, and would that be a gift over, and thus make the condition valid without regard to the use of express words to define such a gift?
It is claimed by the proponents’ counsel that the effect of this agreement in law is to disqualify Mrs. Wetherell as a witness in regard to ,any personal communication with the testatrix, and hence the objection. By the seventh article of the first codicil the testatrix expressed in plain language her intention that as a condition to the payment of this legacy to Mrs. Wetherell she should not, directly or indirectly, institute or become an acting party to any proceeding- to set aside, “interfere with,” or make null any provision of the will or the codicils, and that any such act or proceeding by her should deprive her of the legacy, the provision for which the testatrix, in. such contingency, •abrogated, annulled, and made void. First. Has Mrs. Wetherell violated this condition of the will? Second. Is this condition valid? Disregarding this condition, the petitioner, a legatee, has, on her own petition, instituted this proceeding to revoke the probate of the will, and the effect of her action, if she succeeds, will be' to “set aside, interfere with, and make null” its provision. Under the pleadings herein Mrs. Wetherell sustains the will, and hence is not disqualified as a witness under the section of the Code referred to, to be examined as a witness in aid of the contest, because any testimony ■she might give of personal communications with the testatrix would not be in her own behalf or interest. Her answer, under her own oath, discloses that in her view the legacy to her was not bequeathed by an incompetent testatrix, nor by one unduly influenced, nor by one under restraint, or the victim of fraud; but, on the contrary, it was the voluntary, free, unrestrained act of a person competent to make a will. She, also, in her answer, by words apt for that purpose, affirms the same thing in regard to all other provisions •of the will.
Several months after this contest had actually begun, and much testimony had been given, Mrs. Wetherell and other legatees and heirs at law entered into the written agreement of May 21, 1888, the object of which is stated to be in the agreement itself as follows:. “Of avoiding, as far as may be, any ■controversy, or occasion of controversy, between themselves in relation to any of the property or estate which the said Cornelia M. Stewart, at the time of her death, was possessed of, or in any way entitled to.” This agreement
In this connection we perceive the hidden meaning of this agreement, its real purpose, as it seems to me, namely, the pooling by all of their interests, with a perfect scheme of mutual protection in any emergency, and for the-attempted evasion of the statute now invoked, and also to defeat the condition imposed by the testatrix, as stated in the seventh article of the first codicil. The plain intent of this agreement is to unite all the signers, legatees, heirs at law, and next of kin, under the name of Rosalie Butler, in aid of the pending proceeding to set aside the will. To my mind it is perfectly plain that this proceeding was really instituted by Rosalie Butler in behalf of herself and the signers of this agreement, and the evidence of that fact is the agreement itself. At the date of the agreement the parties thereto-became acting parties to this proceeding to set aside and make null the will, and whether they were directly or indirectly acting is not material to decide.. They certainly did one or the other. Hence, we must ascertain the legal effect of article 7 of the first codicil upon the rights of these persons in the event that this will is sustained. The third article of the agreement was-intended to bind all the parties to an utter disregard of the trust to Hilton and his successors, so far as any benefits might come to them, or either of them, by the execution of the trust. This article is equivalent to a release by the-signers who are not heirs at law and next of kin of the testatrix of any benefits they may ever be entitled to receive under the terms of the trust, by the exercise in their favor of the discretion vested in the trustee, and, further, a binding agreement on their part to pay over to the heirs at law and next of' kin any sums they might receive from the trustee. The scheme of this, article is that the residuary half of the estate devised to Hilton in trust shall go to the heirs at law and next of kin as in case of intestacy, and, at least, to-the entire extent of any benefits any or either of these persons, whether heirs at law and next of kin or not, may have coming to them from the trustees. They repudiate the trust and become parties to a proceeding to make null the trust provision of the will, or, at least, “to interfere” with that provision, and thus they violate the.condition of the seventh article of the first codicil.
The legal effect of this agreement upon the persons who executed it is the relinquishment by them of all their rights dependent upon any of the provisions of the will. They have elected to disregard the will. In legal effect they refuse to accept the benefactions bestowed upon them, preferring rather to rely upon this agreement. It is a fundamental principle that no one is allowed to dispute
I conclude, therefore, that Mrs. AVetherell, by her agreement of May 21, 1888, has deprived herself of her legacy, in the event the will is sustained, •and therefore her interest lies with the contestants and not with the proponents. I hold that she cannot be examined as a witness concerning a personal transaction or communication between her and the testatrix.