19 N.Y. St. Rep. 532 | N.Y. Sur. Ct. | 1888
This is an appeal upon the part of Mrs. Cynthia D. Rood, the petitioner, with George S. Everts, for a revocation of the probate of the will and codicils, four in number, of Lyman Soule, deceased, which were admitted to probate in this court, by decree, dated June 26, 1886. The proceeding for probate was instituted by the filing of a petition therefor, on the part of Charles G. Briggs, Esq., one of the persons named as executors in the third codicil to said will, on the 16th day of December, 1885, and the issuing of citations upon that day. Thereafter one Leroy Soule, an heir at law and next of kin of said decedent, appeared in said proceeding by his attorney and counsel, and filed objections to the said probate. Eighteen other heirs at law and next of kin appeared by the same attorney. The petitioner in this proceeding was among the number so appearing. The issues thus joined were tried in part, evidence was given by all the subscribing witnesses to the will and codicils. The petitioners had rested their case, some evidence
The petition for revocation of probate alleges that Lyman Soule, at the time of making the writings, purporting to be his last will and testament and codi-
The will and two of the codicils are quite long, and at first some of the provisions seem intricate.
At the time of the execution of the third codicil, the decedent was about ninety-one years of age. He had never been married, and his nearest relatives, were nephews and nieces, and their descendants, who are quite numerous, and all recipients, by the will and codicils, of his bounty. The length of the instruments is due principally, to the large number of bequests, and the repetition of formal words. By the first clause of the will, payment of debts and funeral expenses is provided for. In the second clause, is contained a devise of three farms to a brother (since
The first codicil, bearing date the 22d day of March, 1881, witnessed by the same persons, refers to the will, and particularly the third item thereof, and merely corrects the names of the two devisees named therein, which had been interchanged, applying the Christian name of the one to the other, and vice versa.
The second codicil, dated March 25, 1882, witnessed by the same persons, refers to the will. In the first clause is a devise for life of a farm to the testator’s brother (since deceased) and upon his decease to his grandchildren. In the second clause, is a legacy of $3,000 to Charles F. Hurston. In the third are legacies of $1,000 each to five clergymen. In the fourth, the thirty-seventh item of the will is quoted and revoked. The same provisions are then made for the payment of the income of the residuary estate, as in the will, except that the names of four of the beneficiaries are omitted. One new name is added. Of the principal, not to exceed one ninth is given to the heirs of each of these parties, in the same manner that the
First. That Howard Soule, of Syracuse, N. Y. ; Fanny J. Green, of Port Byron, N. Y. ; Mary J. Paige, of Sennett, Cayuga county, N. Y., and Charles F. Durston, of Auburn, N. Y., shall be the four (4) persons who, and their heirs that may respectively survive them, that shall have the income of my rest and residuary estate, willed to my executors,- in and by said item fourth (and which may remain after satisfying the several legacies mentioned in my will, and in the codicil of date March 25,1882, and this codicil, as they remain in force at my decease), of said codicil for the period of five (5) years, and my executors will pay over the same to them, share and share alike, annually, and in the event of the death of either of them, either before or after my death, then to pay over the share (one fourth), to the heir or heirs of such person so
The second subdivision provides for the payment to each of the three charitable institutions before named, of $15,000 out of the residue of the estate, making altogether $20,000 to each. By the third subdivision, the balance of the property, if any, is divided among the legatees named in certain specified clauses of this codicil, and the original will and second codicil upon the basis of the sums given as legacies. The thirty-second clause contains a direction as to forfeiture by any legatee contesting the will. By the thirty-third clause, Charles G. Briggs, Charles F. Durston and Howard Soule are named as executors, Durston being substituted for Horace T. Cook; and, by the last clause of the codicil, it is provided as follows: “If by inadvertence, I have omitted the name of any person or persons, who shall be heirs-at-law at my decease, I direct my executors to pay such person or persons a legacy of $1,000, to each of them, if they see fit and proper.”
A fourth codicil is dated May 21, 1885, by which the above named executors are re-appointed, their
This analysis of the will and codicil is thought to be proper, in view of the contention upon one side of the case, that a person, in the feeble condition of the testator, could not have understood the provisions of the will, owing to their intricacy; and, on the other side, that the will and codicils are simple in their meaning and purport, and, if at all involved, only so in their legal phraseology. Counsel for the proponent says the scheme of the testator was simple, and what he intended is perfectly evident. The difficulty is not as to what was in the testator’s mind, but as to whether the language used expresses his intent. The counsel for the contestants argues that the provisions of the residuary clause are of doubtful legality, as being in contravention of certain statutes, and claims this is evidence, that they were not understood by the testator. If the decedent is found to have been of testamentary capacity, at the time of the execution of the will and codicils, being a man of unusually advanced age, and consequently of weakened powers, in the circumstances of the case, it is necessary to decide, that he fully understood the nature and consequences of his testamentary act; and this must be determined from evidence aliunde the formal execution of the will. The fact that a will is illegal in some of its provisions can be no evidence to show that the attempted disposition was not understood, unless the testator was a
The first inquiry, however, in this case is: Did the testator have legal capacity to execute a will at the times of signing the will and codicils ?
Much evidence has been given upon this subject but it was not contended by the argument of the counsel for the contestant that Lyman Soule did not have mental ability to make a .will of any kind and under any circumstances. On the contrary, it was conceded, he might have made a lawful will at the time of the transactions in question. The evidence to support the theory of mental unsoundness was, the age of the testator, impaired sight, attacks of vertigo, attended by brief unconsciousness, forgetfulness, losing his way and having to be assisted home, and sometimes to his room, physical exhaustion, inability to read papers, making radical changes in the disposition of his property in the last years of his life, frequently declaring that he could not do business, and surrendering up most of it into the hands of others. One witness testified to one occasion when Mr. Soule had an attack in a store in 1880, when he fell out of his chair and remained unconscious, until after a doc
Upon the part of the proponents, it is shown that, up to the time of the execution of the third codicil, and subsequently, the testator collected money upon mortgages and for rent of houses owned by him, gave
A few weeks before he had a conversation with him in regard to a law suit, which has been tried in 1855. The testator told over the details, of which the witness was cognizant, accurately and rationally, and inquired interestedly about people they had both known in former years. The testator was a member of a fire company. He- occasionally met the members at their house, as late as 1882 or 1883. He lent the company $200, in 1881 or 1882, and took a note. Payments were made from time to time. At one time he made them a present of $50. In September, 1884, the note was placed in the bank for collection. He met one of the men, who had made payments, and
In 1884, one of his tenants, who kept a restaurant, told him he wanted more room. Mr. Soule said the tenant next door was going out, and he would see what he could do for him, but advised him not to be too hasty about it. In November, 1883, he made a contract with one of his tenants for the sale of a store, title to pass on the first day of May, 1884. The deed was given at the time named, a mortgage given for a part of the purchase-price, and a check to Mr. Soule for the balance. The negotiations were made in person. Pending the negotiations, he asked a friend to go in and look at the store. When told that he did not want to buy, he replied: “ I would like to have you go in and look at it any way.” This was done. Two or three times afterwards, and in 1884 and 1885, he told his friend he had sold the store, intimating that the looking at it had stirred the matter up, the purchaser being the occupant at the time.
In the fall of 1885, a short time before his last sickness, he drove out to his tenant houses. He mentioned particular houses he wanted to see, expressed pleasure at riding, asked the man who drove to take him to the barber-shop to be shaved. He became ill, and concluded to go home. The driver says he said nothing out of the way. In 1884, he met the husband of one of his nieces, who lived in Sennett, where he had formerly resided, and asked him if a certain farm would bear a thirteen thousand dollar loan. 'At one time he said to this witness, “John when you go home,
This young minister was one of the clergymen named in the second codicil as legatee, to the amount of $1,000. Subsequently he told this witness he was going to make a new codicil, and put Mate’s name in it. After that, in 1884, the witness met him, when he said: “John when you go home, you tell Mate I have been making a new codicil to my will and have put her name in it.” (Mate was the witness’ wife and one of the principal residuary legatees.) He then showed the witness a list of his property, mortgages, etc., which he had to collect.
A large number of mortgages and checks, bearing the indorsement of the testator, were read in evidence; also checks signed by him. Twenty-eight checks were presented, which were filled out and signed in the handwriting of the testator, bearing date of 1884, which had been .presented and paid at the bank in the usual course of business. There were also produced fifty-two checks, issued in 1885, all bearing the autograph signature of the testator, but filled out by others; and fifteen checks, made the.same year, which were both filled out and signed in his own handwriting, and which had been regularly paid.
One witness, produced by the proponents, testifies to being with Mr. Soule upon two occasions, the last about four months before his death, when he was ill upon the street, and Mr. Soule told him that he had one of his dizzy spells; said that he had had them some little time. About six months before, the witness walked with him, when he had one of the dizzy attacks, which
It is proven that the testator’s habit, until a few weeks before his death, was, about eight o’clock in the morning, to go to the National Exchange Bank, where he had his papers, at first in tin boxes kept' in the vault, and, from the spring of 1884, in a safe procured for that purpose. The bank was over a quarter of a mile from his residence. He would often be the first person to arrive in the morning. He was a director of the bank, and had a key to the outer door. He would ask the teller of the bank for his tin boxes, and, going into the back room, would take out his papers and examine them. Payments were made to him there, and receipts either drawn by him or by the cashier of the bank, and signed by him, were delivered; and the papers being returned to the tin boxes, were again placed in the vault or were put in the safe.
The cashier and teller of the bank, who saw him and conversed with him nearly every day, saw nothing irrational. The county clerk testifies that for many years, and down nearly to the time of his death, Mr. Soule brought papers, mortgages and assignments to his office, to be recorded, and frequently asked him to examine the records to ascertain if there were any prior liens upon the incumbered property; and would ask for and take away papers which had been recorded. The office was over a half a mile from his residence, and he usually walked to it. On one occasion, a short time before his death, the witness saw him getting on
One witness, who rented a store building of the testator, testifies that he paid him the rent monthly down to near the time of his death, and took receipts, all of which were in Soule’s handwriting, down to the first of June, 1885. Receipts given in June and July, 1885, were drawn by the witness, and signed by Mr. Soule, at the witness’ place of business.
The testator died November 28, 1885, of acute bronchitis. The will and first two codicils were witnessed by two gentlemen, who were officers of and in daily attendance at the bank, where the testator had his papers, and of which he was a director. They knew him intimately. One of the witnesses, Mr. Newton, had been acquainted with him fourteen years; had seen and conversed with him almost daily from the time he brought his papers to the bank, in 1878, to about three months before his death. He had known of his extensive business transactions, and had taken part in many of them, both as an officer of the bank and as an assistant of the testator. He, as well as the other witness, testifies unqualifiedly to the opinion that the testator was of sound mind and memory, and in all respects competent to make a will at the time of the execution of the will and first two codicils in question. The third codicil was attested by men who were acquainted with Mr. Soule. One of them was a physician, who had attended him professionally upon two occasions, and who testifies to a conversation with him at the time of the execution of the
The witnesses to the fourth codicil, dated May 21, 1885, were both well acquainted, with the testator. One was a neighbor. Both of them say, without hesitation, that he appeared in his right mind, and seemed to exercise his own free will.
In addition to the evidence of the acts and conversations of the testator, extending over a period of several years immediately prior to his death, and the opinions of some of the witnesses, who were called to detail them as to the impressions made at the time by such acts and speech, and the opinions of the subscribing witnesses to the will and codicil, expert testimony has been given. Four physicians on the part of the contestant; and three, including the state commissioner in lunacy and the superintendent of the State Asylum for Insane Criminals, on the part of the proponents, were produced as witnesses. They testified to their opinion, in response to hypothetical questions, propounded by the respective counsel. To a question presenting very fairly the principal facts established by the whole evidence five of these witnesses agreed in giving the opinion that a person thus described, would be one of sound mind. The other two witnesses answered adversely in reply, to a question embracing only the facts testified to by a portion of the contestant’s witnesses, and without the benefit of the entire history given in the case.
Upon the whole evidence, the conclusion is imperative that the testator, at the time of the execution of
The case of Horn v. Pullman, decided by the Court of Appeals in 1878, 72 N. Y. 269, involved the question of the testamentary capacity of a man eighty-three years of age, who was suffering from infirmities incident to advanced age, and had been previously afflicted with sickness, which left him enfeebled in body. His sight and memory were considerably impaired. He took no active part in business for several years before his death, which occurred within three months after the execution of the will. He had grown more reserved and less cheerful than formerly; would repeat questions sometimes two or three times during a conversation. He did not recognize readily some persons with whom he was acquainted, and had to be told who they were. The evidence altogether showed that the testator’s mental and bodily powers were impaired, but failed to show that he did not understand his relations to his family, the condition of his property, and the effect of his will. There was evidence
The physician who attended him during the last year of his life, and who was one of the subscribing witnesses to his will testified that his memory of recent events, appeared to be impaired and that he was bodily and mentally infirm; but, in the witness’ opinion, those infirmities did not affect the testator’s competency to make a will. The court adopts this view of the case, and lays down the rule that a will should be sustained if the testator is shown to have had sufficient intelligence to comprehend the condition of his property, his relation to those who are or may be the object of his bounty, and the scope and meaning of the provisions of his will, provided it be his free act. Many cases might be cited to show that mental impairment alone is not deemed sufficient to defeat a will, if the person who made it, appears to have had sufficient understanding to appreciate its effect. The courts have also held that a person who has sufficient capacity to make the simplest will, who is compos mentis, can make any will, even the most complicated. Delafield v. Parrish, 25 N. Y. 97.
Within all the authorities it must be held that Lyman Soule had legal testamentary capacity, at the time of the execution of the will, and at the time of executing the codicils. His numerous business transactions and conversations, all conclusively proved that he was compos mentis.
A question of more difficulty to decide, upon all the facts of the case, is whether the instruments ad
Had the parties who wrote the instruments in question been entirely disinterested, and the testator been in the full possession of his normal faculties and senses; had his sight been good, his memory unimpaired and his actions independent, the presumption would follow that he fully understood the provisions, and desired to have them carried into effect. But the will and first two codicils were written by a lawyer, who is made a legatee to the amount of $2,000, and the third codicil was drawn by and is in the handwriting of another lawyer, who is given thereby one fourth of the income of a large residuary estate for five years, and, at the end of that time, the sum of $25,000, and who is named therein as an executor, at a salary of $1,000 a year for six years, in addition to the commissions allowed by law. Upon the issue as to undue influence, the question of the burden of proof is in the circumstances, not free from difficulty, and the decisions of the courts, in other cases, have been examined to ascertain the proper rule to be adopted in the present controversy. •
The case of Marx v. McGlynn, 88 N. Y. 357, was one in which the testator had made a will in favor of his religious adviser, and the question of presumption as to undue influence was raised.
The court held that it is not sufficient to show that a will is the result of affection or gratitude, or the persuasion of a friend or relative, which he may legi
Two kinds of undue influence are referred to as being recognized by the law; one of coercion or threats of injury by which a person is compelled to act contrary to his desire, which cannot often occur under the present system of executing wills; the other, and more common one, in which the mind of the person is wrought upon through constant persuasion and mental or moral pressure, or appeals to hope or fears, continued until the victim, for the sake of peace, is compelled to surrender his own wishes, and do an act which he would not do or desire to do if left freely to act his own pleasure.
The case of The Will of Martin, 98 N. Y. 193, was one in which probate was contested on the ground of undue influence. The testatrix left three sons, one of whom was named as executor of the will. He had communicated to the scrivener the provisions to be inserted in the will, and was himself a beneficiary. It
The case which has been most urged upon the attention of the court as an authority, and which, in many of the facts involved is most like the case at bar, of the decisions of our highest court is that of the Matter of The Will of Smith, 95 N. Y. 516. Eliza M. Smith, at the time of making her will, was over seventy-five years of age. She had no near relatives. The lawyer who drew her will was the chief beneficiary. The testatrix was infirm mentally and physically. She had made three previous wills, two of them made in the same year as the last. In each of these the contestant was named as legatee. In the first two she was residuary legatee, but in the third the proponent was named as residuary legatee. In the fourth will, the one in question, the contestant was not mentioned, and the draughtsman was given the bulk of the property. The will was drawn and executed five days before the death of the testatrix. The court says, the fact that the beneficiary was the attorney of the decedent, does not alone create a presumption that a testamentary gift was procured by fraud or undue influence; but, when a person of advanced years, and mentally and physically infirm, has made his attorney the principal beneficiary, and it
The case at bar differs from all the cases cited to such an extent that the burden of proof upon the claim of undue influence, is left almost entirely to the judgment of the court, as a new question. It may be said that propriety at least, would dictate that a person, deriving a benefit from the will of another, should not conduct the affair. Qid se scripsit heredem, or whoever draws a will in his own favor, does a- thing which ought to excite the suspicion of the court, and call upon it to jealously examine the evidence, and be judicially satisfied that the paper propounded expresses the true will of the deceased, before admitting it to probate. .The fact that the testator had full testamentary capacity, and knew the contents of the will, is sufficient to remove such suspicions, and to place' the burden upon the contestants of proving undue influence. It was said by the Surrogate in Wilson v. Moran, 3 Bradford, 180 : “A will by a client, in favor of an attorney, is not absolutely invalid. In such a case, there is no testamentary incapacity, but still the circumstances call for the largest degree of circumspection and vigilance to see that the act was in consonance with the views and wishes of the testator, and was not the result of influence, exercised through the
It does not appear what may have been Lyman Soule’s purpose as to the disposition of his property prior to the will executed June 24, 1880, or that he was then mentally infirm. The legacy to the attorney who drew the will was small compared with the size of the estate. It would not seem to be unreasonable to assume that the legacy was given in consideration of services rendered. There is not enough evidence to raise the presumption that this gift was procured by fraud or undue influence, and, if there was, the will being republished at the time of the execution of the third and fourth codicils, when other advisers were employed, no other evidence need now be considered, as regards the validity of the will and the first and second codicils.
The testator’s property amounted to about $200,000, and the attorney’s share was about $17,500. The Court of Appeals in its opinion in that case, says: “ The relation of attorney and draughtsman gave, no doubt, in the case before us, the opportunity for influence, and self-interest might supply a motive to unduly exert it; but its exercise cannot be presumed in aid of those who seek to overthrow a will already established by the judgment of a competent tribunal, rendered in proceedings to which the plaintiffs were themselves parties, nor in the absence of evidence, warrant a presumption that the intention of the testator was improperly, much less fraudulently, controlled.”
In the present case, the testator was a person of advanced years—about ninety—when the third codicil was executed he was physically infirm, he was slow of movement, his sight was poor and he depended upon others to read to him. This instrument was in respect to the most important provisions, contrary to his previous will and codicils. The attorney and draughtsman was one of the chief beneficiaries. These facts require that the proponent should satisfy the court by a clear preponderance of evidence that the testator fully understood the nature and consequence of the testamentary act. There is no direct proof of any attempt on the part of the attorney or those who were associated with him, to induce or influence the testator to make this codicil. There had been one quite radical change in the testamentary disposition of
It is proven that Mr. Soule had repeatedly, after making the will, expressed his dissatisfaction with his relatives. He did not live with any of them, or have much intimacy with them. He was heard to say of Howard Soule, who continued throughout to be one of the residuary legatees, that he liked him, because he stayed away from him, and didn’t bother him; that he did not come, until he sent for him. There is evidence of expressions of affection for Mr. Hurston, the attorney who drew the third codicil, made by the testator in the years 1884 and 1885. One witness says he had a conversation with Mr. Soule, in Mr. Hurston’s office, in August, 1884. When asked, if it was not hard for him to come up stairs into the office, Mr. Soule had said: “Yes it is some, still, at the same time, I make it my business, if I can, to see Mr. Hurston once a day, for I like the man very much.”
Another witness was in the office in the spring of 1885. Mr. Hurston went out to the bank. Mr. Soule, sitting there, said: “ Charley is a good boy, an awful good boy; I wish he was my son.” Another witness says, Mr. Soule in speaking of Mr. Hurston, in 1885, told him, he was his best friend, that he thought a great deal of him, and considered him a very honest man; and that he had said in substance the same thing to him at different times before. Another witness tells
In the second codicil, dated May 25, 1882, in the making of which it does not appear that he took any part, Mr. Durston is made a legatee, to the amount of $3,000. It appears that the testator was very frequently in Mr. Durston’s law office in the years 1884 and 1885, and that to enter the office he had to climb a very long flight of stairs, with considerable difficulty. Durston attended to the decedent’s law business, supervised his loans, made collections for him, and thus much of his time was occupied during the last three or four years of the testator’s life. It does not appear whether he received any other compensation than the legacies named in the will. It is shown by the will and codicils that Mr. Soule made provisions in this way to compensate other lawyers, and, in one instance, it is upon condition that no other claim be made. The amount given to Durston is stated to be about six per cent of the testator’s property. Prior to the execution of this codicil the testator told the husband of Mrs. Paige, one of the four principal legatees, that he was going to put his wife’s name in it, and afterwards told him that he had done so. This legatee had been named in the original will as the recipient of $2,000. With the exception of the change in the residuary clause of the will above mentioned, the scheme of the third codicil, both as to the persons benefited and the proportionate amounts bequeathed, is practically the same as before. The amotints of most of the general legacies are increased, and all the relatives are remembered. From the evidence of the housekeeper,
By the will, as altered by all the codicils, about $116,000, is given in. general legacies, the farms are disposed of' in the same manner, the income of the balance is given to four persons, three of whom are relatives, for five years, $100,000 is then to be divided between the four, the three charities are bequeathed $20,000 each, and the residue of the property is given
It is in proof that the day before the third codicil was executed, the testator, his nephew, Howard Soule, Charles G. Briggs one of the executors, and Charles F. Durston, were together in a room in the latter’s office, with the door shut. The law partner and the clerk of Durston were aware of the fact that the parties were together, and the clerk was instructed not to allow interruptions. A draft or memorandum of the will had been previously made, which was read over to the testator by Howard Soule, who says this was his second visit to Auburn, and the first time, he had seen the testator upon this business.
After reading the draft, and-, at the request of the testator, he furnished him with the names of the children of his (Howard’s) brother, who were afterwards included in the codicil. He made an appointment to come again the day following. He came from Syracuse the next day, as agreed, saw the engrossed codicil in the morning, and read it in part to the testator. In the afternoon, he read the whole of it to the testator.. This was the same day upon which it was executed. He now identifies the original instrument as the one
The amount of the legacies is both written out and twice stated in figures. It would seem impossible, to even glance at this- subdivision of it, without learning who the beneficiaries are. The fact that the codicil was read to the testator, by his relative and chosen adviser, is fully established. It cannot be held that Lyman Soule was the victim of deception or imposition without involving all the parties, who were present at the time the codicil was prepared, in an unlawful and contemptible conspiracy. The facts do not create such a presumption. In the absence of the positive proof or circumstantial evidence, sustaining
The conclusion is that, at the time of the execution of the third codicil, the testator was of sound mind and memory, and competent to make a will; that the codicil was his free act,, and that it was in all respects properly and legally executed, and that the testator was not under restraint.
It is claimed, on the part of the respondents in this proceeding, that the petitioner is estopped from maintaining it, by the fact that she has derived a benefit under it, and accepted money paid in pursuance of the decree admitting the will to probate. Certain concessions were, at the request of the parties, granted upon probate, and incorporated in the decree, as stated above.
It is not' demonstrated, nor is it clear to the court, that the petitioner derived any practical benefit from the adjudication in this respect. It is proven that, after the will was admitted to probate the petitioner, Mrs. Rood, as assignee, received from the executors a legacy of $500, given by the third codicil to George A. Rood, her son, less the rebate of interest. It is now urged that, by this act, she is estopped from controverting the provisions of the decree.
Upon the trial of this proceeding, after the evidence was closed, the petitioner, by her counsel, made a tender in court of the sum of $496.85, stating that he desired to tender the amount advanced to Mrs. Rood, for George Rood’s claim, and interest to date, and to deposit that amount in court for the benefit of the
First. Was the petitioner, Mrs. Rood, estopped from contesting the validity of the will by accepting the money ?
Second. If she was so estopped, does the tender or offer to return the money, after the proceeding was commenced and continued nearly to a completion, restore her to the position she occupied before the money was received ?
It will be seen by the following authorities that, after some difficulty, the courts have decided that a decree upon probate of a will, does not preclude a party who opposed it from litigating over again the same questions in a proceeding like the present. It was decided by the general term of the Supreme Court, in the First Judicial Department, in 1883, In The Matter of the Will of Gouraud, 28 Hun, 560, that it was not the object of the statute relating to a revocation of probate of a will, to allow next of kin who had filed objections to the original probate, and contested it, to file the same objections, and enter upon a new contest on the issues already tried and determined.
This decision was overruled, however, by the Court of Appeals, 95 N. Y. 256, and that court held that upon a proceeding for revocation of probate, the whole case was left open, and that the contestant had the right to have the same question then litigated, tried and determined, the same as if no adjudication had been had thereon. The court says, a party desiring to contest the probate in that way, has the right to try over again upon the same, or upon additional
The ease of Mills v. Hoffman, 92 N. Y. 181, which originated in this court, is in many respects similar to the one at bar. An action had been brought by a legatee against an administrator, with the will annexed, and others for the purpose of determining the rights of the parties in the estate and for an accounting. A judgment had been rendered in the action, determining the question involved, and adjudging that the administrator upon compliance with its terms be discharged from all demands. The administrator performed the requirements of the judgments, and paid over among others, the share of the defendant, who was then an infant. The payment was made to her general guardian: After the defendant became of age, with full knowledge of the term of the judgment, she received from her guardian the moneys so paid to him. She also instituted proceedings to vacate the judgment, upon the ground that the appointment of a
In the case at bar it appears that the petitioner did receive the money from the executors of the will. A party, who takes personal property under a will, to a certain extent derives title from the probate. The petitioner would not have had a right to demand payment of the .bequest, except for the decree admitting the will to probate. By the statute, authorizing the proceedings for revocation, the effect of the decree as an adjudication, was suspended, except for the act of the petitioner, in accepting the fruits of the decree, and of the will as thereby established. At the time this proceeding was instituted, she had in her possession the money which she had received in the nature of a bequest, and to which she or her assignor would not have been entitled, if the will had been denied probate. I think the petitioner was not at liberty to repudiate the terms of the decree, which she had ratified in accepting the bequest; and that she is estopped from claiming a revocation of probate, unless by her subsequent act she had made full restitution. Did the tender of the money in court have the effect to restore
The court says it is highly reasonable that costs should be paid when they have been properly and fairly incurred. It was so held also in the case of Eaton v. Wells and others, 22 Hun, 123, an action for the foreclosure of a mortgage, in which a tender of the amount of the mortgage, without costs, was made after suit was brought, and without an order permitting a tender without costs. It is very doubtful, however, if any tender or deposit of the moneys in court, after the commencement of this proceeding, could be of avail to the petitioner. It has been held in another state that, where an execution has been levied on goods and chattels which have been sold, and the proceeds paid over to the creditor, he cannot maintain an action to obtain a new execution upon the ground that the goods were not the property of the debtor, until he has refunded the money thus received, or tendered it back. Batchelder v. Wason, 8 N. H. Rep. 121. In a case in this state, in which the plaintiff sought to recover on one of two notes the consideration of which was the assignment of a judgment held by him against the defendant’s brother, it was proven that, after its maturity, the note was transferred to the plaintiff, and the judgment assigned to him also. There was no offer made by him to assign the judgment. The court held that, if either party would sue upon this agreement, the plaintiff for not paying or the defendant for not transferring, the one must aver and prove a transfer or tender, and the other a payment or tender. Berringer v. Wengenroth, 6 Hun, 531.
An offer was also made, at the same time, to add another party as petitioner,- against whom it is not shown the same defence could be made, but, as the statutory time of limitation of commencing the proceeding is passed, and some of the parties are infants, and all are not represented, the amendment cannot be held to give the new petitioner the same right he might have had, if joined originally in the petition.
It is claimed by the petitioner that the trusts, attempted to be created by the will, and the thirty-first item of the third codicil, are prohibited by the statutes against perpetuities, and are consequently void. The law limits the suspension of the absolute ownership of personal property to two lives in being, at the death of the testator, and it is contended that the ownership of the property cannot be absolutely determined until after five years, which may exceed the time allowed by statute.
It is also urged that the will violates the statutes forbidding a direction as to the accumulation of interest except for the benefit of minors. The decision of these questions, which are perplexing, is not useful or proper at this time. The inquiry now is whether the will was legally • executed, and if it shall stand as proven, or if probate shall be revoked, and the will or codicils be set aside. The construction of the will, and the decision as to the legality of particular provisions must be had either upon the judicial settlement of the
It being determined that the will and codicils were duly signed and published by a competent person, that they were his free acts, and that he knew and appreciated their provisions and effect, this application is denied. Costs are allowed to the successful parties from the estate. .
[Note.—See former proceedings in this estate: 6 Dem. 137.]