97 N.Y.S. 367 | N.Y. App. Div. | 1906
Charles Wohlgemuth, the testator, died, at the German Hospital in Hew York city on August 20,1903, after a surgical operation on August nineteenth. On August eighteenth, the day before the operation, he made a holographic testamentary instrument. On the following day, August nineteenth, he made another testamentary instrument, also holographic. These two instruments were subsequently offered for probate as the last will and testament of the deceased, and upon such proceedings a decree was entered on the 2'Tth day of February, 1904,'in the Surrogate’s Court. By said decree it was “ Ordered, adjudged and' decreed that the instruments offered for probate herein be, and the same hereby are, admitted to probate as the last will and testament of the said deceased, valid to pass real and personal property; and that letters testamentary be issued thereon to the executors who may qualify thereunder.”
On the 2d day of March, 1905, the executors presented a petition to the Surrogate’s Court, wherein they set forth the issuance of letters testamentary to them, the names of the persons interested in the estate of said deceased, as creditors or persons claiming to be creditors, or next of kin, legatees or otherwise ; that more than one year had elapsed since the issuance of letters testamentary, and prayed that their account might be judicially settled, and that the persons above mentioned might be cited to attend the settlement thereof; and at the same time filed their'verified account. A citation was duly issued as prayed. Schedule E of said account, entitled “ Containing a statement of all moneys paid to the legatees or next of kin of deceased,” showed the payment of seventy dollars in sums of ten dollars and fifteen dollars to six persons, described as follows in the instrument executed on August 18, 1903 : “ $10.00 each to the four sister nurses. Also $15.00 each to the two men
To this account objections were on May 8, 1905, filed as follows: “ The Village of Seewen, cited herein as the community of Seewen, hereby objects to all the payments made by said executors to legatees as set forth in Schedule E of the account of said executors filed herein, on the ground that said payments were' not authorized by the terms'of the last will and testament of the said Charles Wohlgemuth, deceased.” ' The learned- surrogate filed a decision in which, as findings of fact, he found, inter alia, that the executors had filed a true and correct account Of all their proceedings; that the said payments objected to were valid payments; that the balance in the hands of the executors should be distributed and paid as follows : “ * * * 3. All the legacies mentioned in the last will and testament, dated August 18th, 1903, and codicil thereto, dated August 19th, 1903, pf said Charles Wohlgemuth, deceased, except the legacy of Martin Wagner.
“4. The balance to the Village of Seewenand, among his conclusions of law, that “ the objections of the Village of Seewen to the account of tlie executors are overruled and said account should be. judicially settled and allowed as filed " * * The legacies
given' by the last will and testament of Charles Wohlgemuth, deceased, dated August 18, 1903, to (enumerating -legatees), are good and valid legacies under the last-will and testament * * * and should be paid by the executors out of the funds in their hands-remaining; ” and .that “ The Village of Seewen is the residuary legatee under said last will and testament; ” and a decree Upon said decision and in conformity therewith was duly made and entered.
. The village of Seewen excepted to certain findings and conclusions, and to the refusal of the surrogate to find certain proposed findings and conclusions presented by it, and appeals to this court from certain portions of said decree. '
The exceptions are based upon the contention that the instrument dated August 19, 1903, was the last will and testament of the deceased; that it was complete within itself; that it necessarily entirely revoked the prior instrument; that, therefore, • all of. the legacies in the instrument of August eighteenth fall, and that'
In the case at bar there, is no such need for the probate of both instruments. • The second paper appoints the executors, and the appellant claims that the first instrument is not to be looked intd for any purpose. If that be so, surely it was improperly admitted to probate. But the decree admits both instruments as the last will and testament of the deceased. Section 2626 of the Code of Civil Procedure provides that “A decree admitting to probate a will of personal property made as prescribed in this article
Section 2647 of the Code'provides that a person interested in the estate- of a deceased -person may present to the Surrogate’s Court, in which a will of personal property: was proved, a verified written petition containing allegations against the validity óf the will and asking for a revocation of probate. Section 2648 of 'the Code provides that this petition must be presented within one year after the recording of the decree admitting the will to probate except as therein otherwise' provided: - Subdivision 6 of section 2481 ,of thó - Code gives the surrogate power “ to open, vacate, modify or set aside, or to enter, as of a. former time, a decree or order of his court; or to grant a new trial or a new hearing for fraud, newly discovered, evidence, clerical error -or other sufficient cause. The. powers conferred by this subdivision- must be exercised only in a like case and in the same manner as- a court of record and of general jurisdiction"exercises .the same powers.”' ' Section 26p3a of the Code provides that “Any person interested as devisee, legatee or otherwise in a will or codicil admitted to probate in this State * , * * may cause the validity or invalidity of the probate thereof to be determined in an action in the Supreme Court * * “. . The issue of the pleadings in such action shall be confined to the question of whether the writing produced is or is not the last will and codicil-of the testator or-either. * * * The" action brought as herein provided" shall be commenced within two years after the will or codicil has been admitted to probate, but persons within the age" of minority, -of -Unsound mind, imprisoned, or absent from the State, may bring such action two years after such- disability has been removed.” ■ .
. . ’ It follows that the decree admitting a will to probate so far as it" relates tq personal property is final and conclusive .until • reversed
“ With respect to the probate of a will, so far as it relates to personal property, the surrogate’s decree is made by the statute conclusive, as an adjudication, until it is reversed on appeal or revoked by him. * * * As to the personal property, if the person interested is not under disability, or the surrogate’s discretion is not invoked for a sufficient cause, under subdivision 6 of section 2481, the probate concludes all mankind after the lapse of one year. In such event the disposition and distribution of the personalty by the executor are beyond question or recall and a finality. The proceeding for the probate is in the nature of a proceeding in rein, which is binding upon all parties who are entitled to participate, and are brought in by due process of law!” (Hoyt v. Hoyt, 112 N. Y. 504.) Eor does it matter that the appellant was not cited upon the probate proceedings. The statute does not require the citation to be served upon a legatee (Code Civ. Proc. § 2615), although by section 2617 such legatee may appear at his election. “ The decree was made in a proceeding in which all the parties required to be cited were before the court. It is, therefore, as to the personal property of the testator affected by the will or codicil, conclusive as an adjudication not only upon such parties, but upon the applicant, who neither appeared nor was cited in the proceeding.” (Matter of Tilden, 32 Misc. Rep. 118, and causes cited; affd., 56 App. Div. 277.) The decree having become conclusive by the expiration of a year, the executors paid certain of the legacies provided for by a part of the instrument declared by the surrogate to be decedent’s last will and testament. These payments were objected to, and in such collateral attack the validity as a last will and testament of the, portion of the instrument providing for them was assailed. We do not believe it can be done in the case at bar. As the surrogate has by a conclu-
•O’Brien, P. j,, Ingraham, Laughlin . and Houghton, JJ., concurred.
Decree affirmed, with costs to the executors against the . appellant.
Sic.
Code Civ. Proc. chap. 18, tit..3, art. 1.— [Rep.