156 N.Y.S. 346 | N.Y. Sur. Ct. | 1915
This application by those who are neither heirs at law nor next of kin of Mrs. Leslie for leave to come in and open our decree admitting her will to probate and contest the validity of such la-st will and testament, disposing of an estate which she held in full property, or as it is technically termed in fee simple absolute, is both novel and important. The application depends wholly on a recent statute of this state, to which I shall hereafter refer. Ho similar statute is to be found among the laws of any of the civilized -states of Europe. The statute
I regret that this is one of the cases where 1 must resort to arguments and sources of law not depended on by the counsel in the cause, because my conscience imperatively prompts me to find elsewhere than in their briefs and arguments the reasons of my judgment. I say this only in order to relieve counsel from any responsibility in the event that those reasons shall not ultimately commend themselves to the judgment and conscience of those superior to me in authority and in responsibility.
The decree now sought to be opened probating the last will and testament of Mrs. Leslie was passed in a proceeding where every requirement exacted by law was complied with; all the persons directed by the law of the land to be cited to attend the proceeding were duly cited. The decree itself was in every respect regular. The jurisdiction of the court to render it was complete. Such a decree is one in rem, and declared by old and solemn authority, often reiterated, to be binding on all the world,, including the petitioners. (Bogardus v. Clarke, 4 Paige Ch. 623; Hoyt v. Jackson, 2 Dem. 443, 456; Matter of Lasak, 131 N. Y. 624; Heyer v. Burger, 1 Hoff. Ch. 1, 11; Matter of Wood, 8 N. Y. Supp. 884; Anderson v. Anderson, 112 N. Y. 104, 113; Matter of Kellum, 50 id. 298; Vanderpoel v. Van Valkenburgh, 6 id. 190, 199; Roderigas v. East River Sav. Inst., 63 id. 460; Kelly v. West, 80 id. 139, 145; Matter of Killan, 172 id. 547, 564; Stiles v. Burch, 5 Paige, 132 ; Whicker v. Hume, 7 H. L. Cas. 124; Concha v. Concha, 11 App. Cas. 541; Pinney v. Pinney, 8 B. & C. 335; Pinney v. Hunt, 6 Ch. Div. 98; Jones Ev., §§ 609, 610.) On such a decree persons
When we come to resolve a cause of first impression, we should always enquire in limine concerning the status of the actors or petitioners and their title to the relief sought. Every right and title recognized in American courts of justice flows either from the common law, the constitutions of government or from competent statutes. Xo other title or right is recognized in the courts of this state unless the parties are domiciled elsewhere, or the title, right or chose in action originated out of this state. This last exception denoted is not applicable here. The promovents now here seeking relief depend solely on the recent statute of this state, to which I have before referred. They derive no support from the common law or from any section of the constitutions of government. They must stand or fall by the act I am about to specify. (Laws of 1901, chap. 481, afterward made section 290a of chapter 547, Laws of 1896, and now transferred to section 91 of the Decedent Estate Law.) This statute is in terms as follows: “ When the inheritance shall have come to the intestate from a deceased husband or wife, as the case may be, and there be no person entitled to inherit under any of the preceding sections, then such real property of such intestate shall descend to the heirs of •such deceased husband or wife, as the case may be, and the persons entitled, under the provisions of this section, to inherit such real property, shall be deemed to be the heirs of such intestate.”
A word more on the nature of the powers of legislation intrusted to American legislature. It is a principle of American public law that our legislatures cannot enact any law contrary to “ natural right.” The modern English theory of the omnipotence of parliament has no place in our public law. It had once no place in the common law of England. A great English judge, Lord Chief Justice Hobabt, in the reign of James I, in the case of Day v. Savage (Hobart’s Reports 87) said by the common law: “ Even an act of parliament made against natural equity as to make a man a judge in his own case, is void in itself, for jura naturae sunt immutabilia and they are leges legrnnThis great principle, accurately stated by Lord Justice Hobabt, has disappeared from the law of England in ways I shall not stop to recite. It fortunately survives in our common and public law.
I do not in reality ascribe to the legislature any such fatuity as an attempt by the act under consideration to raise up a new class of heirs at law to Mrs. Leslie or to any man or woman dying seized of real property. A legislative act must always receive a rational interpretation. It must be reconciled, if possible, with justice and good sense. It is very obvious to me that the real intention of the act was to provide for some of those numerous cases where the state acquired, or was about to acquire, for default of heirs (propter defectum sanguinis as it is called), escheats or rights of escheat by virtue of its sovereign paramountcy over all ownerless things within its territorial domain. The act in question intended that in that event, and in that event only, the rights of the state should devolve on the class designated in the act. That it was within the power of the legislature so to enact, I shall assume without present inquiry, however open to doubt the point may be under the provisions of the 'Constitution restricting the disposition of the public wealth. It is unnecessary to restate the familiar principles on which the state’s title to escheats without office found rests. It would only prolong
The rights, if any, of the heirs at law of Mr. Frank Leslie to succeed to the estate in fee simple absolute of Mrs. Frank Leslie under the act in question can only be regarded as a gift from the state. If this is accurate, they can acquire by gift from the state no better right or different right than the state itself has to such freehold estate. “Aon débeo melioris conditionis esse qu-am auctor meus a quo jus in me traoisit ” is a maxim not only of the civil law, but of the common law as well. I believe there is no known exception to the rule of law stated in this maxim. This being so, we must next enquire what rights can the state be held to have intended to confer on the heirs of Mr. Frank Leslie in the separate freehold estates formerly of Mrs. Frank Leslie.
It has never been understood that the ultimate right of the state in what is known as eaducary successions, including es-cheats, entitled it to contest the probate of a will of an heirless person in order to promote its right to escheats. The will of an heirless testator stands free from attack in that quarter. It would be contrary to public policy and to all principles of the common law, nay, contrary to all rights secured to our citizens by our constitutions of government, if the state could promote its eaducary succession by a resort of that bind to its own courts of justice. The only remedy of the state for escheats is by way of
If the title or claim of Mr. Leslie’s heirs to the freehold estates of Mrs. Leslie can only be supported as a gift from the state, then this court has no jurisdiction to enforce such gift. To enforce a gift from the state the heirs of Mr. Leslie must have recourse to the great general court of the state, now invested with the jurisdiction of the former chancellors. In an exceptional case that tribunal has complete jurisdiction to grant any relief which the facts justify. Mo such power exists in this court.
There are several other principles of law which ought, I think, to frustrate this application. The assertion of a servile status, or a status of illegitimacy, is not in law open to every one, and, indeed, after a great lapse of time it is open to no one. The common law of this land is full of adjudications on both these points. If a person had been for several generations a freeman, a private person cannot be heard to assert the contrary in a court of justice. A stranger cannot raise an issue of legitimacy. To permit such assertions is regarded as contrary to public policy. To allow Mr. Leslie’s heirs at law to violate these plain principles would be repugnant to justice. It is only in cases where
The unwisdom of any other construction of this act than that here accorded to it is exemplified by this case. When the common law: said that God only made an heir it was replete with human and divine wisdom. Such heirs are naturally tender to the memory of ancestors. Their cupidity is bounded by the law of decency and propriety. Hot for all the inheritances in the world would a freeman brand his mother or father, for example, as servile. It would be contrary to human experience and human instinct for 'blood relatives to stain their line. Any other construction of this act than that here accorded to it leads to the contrary actions and excites the worst passions of men.
But I ought not to dispose of this matter without some reference to the merits of the respective contentions of the parties. It is claimed in substance on the part of Mr. Frank Leslie’s heirs at law that his widow could have no heirs at law of her own, as the only parent through whom such heirs could claim was by the ante helium, law of this country prior to 1861 held in a servile status; all such persons, like many in the Middle Ages,, being what is known in the old law as “ propertyless persons,” and therefore not stocks or stirps of descent. Of course, such a. claim seems to us now at this lapse of time a monstrous claim. But even if not monstrous in law, to my mind the evidence purporting to support the claim in this instance is- of the most inadequate and nebulous kind. Besides, the claim of Mr. Leslie’s heirs is met on the part of those claiming to be either the heirs at law and the legatees or devisees of Mrs. Leslie with most indignant and to my mind complete denials. In all countries, where a servile status exists or has once existed, the free born and their descendants are for a long period of time thereafter outraged by charges detracting from their own superior status, or by what they regard as an unjust attempt to include them,.
On the merits of the papers presented in this matter it would seem that the origin, life and memory of the deceased lady are most unjustly attacked. It appears therefrom that all" her life she was entirely free from all association with persons once of servile status; that she associated exclusively with persons not of that status, some of them more or less eminent as people of letters or in other walks of life. That she bore no trace whatever of the origin ascribed to her by the heirs at- law of her late husband is apparent from the papers before me. The members of the highly respectable 'Southern family claimed by Mrs. Leslie as her own, and by whom she was claimed, repudiate in substance all such assertions. I must say that on the papers submitted to me the contention of Mr. Leslie’s heirs at law in respect of Mrs. Leslie’s status is entirely disproved. But for the other reasons already stated the application of Mr. Leslie’s heirs at law must be dismissed.
Decreed accordingly.