217 A.D. 342 | N.Y. App. Div. | 1926
Frances Julia Cook died in Whitehall, Washington county, June 10, 1925. Her heirs at law and next of kin were a sister, Rachel Barber, two nephews, Robert and William Kirkham, and a niece, Kathryn Russell. The deceased left a paper dated February 14, 1924, which was offered for probate as her will, and the attesting witnesses were examined. Thereafter the next of kin filed objections contesting the validity of the paper as her will. The proponents thereupon procured an order requiring the contestants to show cause why the objections to the probate should not be dismissed, the proponents claiming that each of the contestants had made a valid agreement with Frances Julia Cook that he or she would not at any time contest her will. The contestants opposed this motion, first, on the ground that they and each of them signed the agreement induced thereto by false representations and offered to return the consideration moneys received; second, that the agreements were the result of undue influence practiced upon her; third, that decedent, at the time she made the agreement, was incompetent; and they asked for a jury trial of the issues so raised. The surrogate overruled the objections and made the order from which the appeal is taken, directing that these issues be tried before him without a jury, before and separate from the issues raised as to the factum of the will.
The appellants contend that the surrogate has not jurisdiction to pass upon the validity of the alleged agreement. We think this objection is completely answered by section 40 of the Surrogate’s Court Act, which, so far as material, reads as follows: “ Each surrogate must hold, within his county, a court, which has, in addition to the powers conferred upon it, or upon the surrogate, by special provision of law, jurisdiction, as follows: To administer
It is necessary that this question should be determined before the hearing to establish the factum of the will. The' contestants were properly cited as the heirs at law and next of kin of the deceased; they are properly in court, but have not of necessity an interest. Whether or not they have is a preliminary question. The fact that its determination will at the same time determine the validity of the alleged agreements is not material. The contestants claim that these agreements were procured by deceit practiced upon them and that the deceased signed the agreements under undue influence. Neither of these issues has to do with the validity of the proposed testamentary paper. The contestants have challenged the competency of the testatrix at the time the agreements were made, which also was approximately the time that the will was made, and urge, therefore, that these preliminary questions be tried along with the validity of the will. This argument is over weak. Of their own choice they are introducing that question in a proceeding which must precede the trial of the factum of the will; if the proponents are sustained there will be no contest.
The appellants claim that both the questions, as to the validity of the agreements and the validity of the will, should be tried with a jury as one proceeding. They do not raise the question whether, if these preliminary questions are to be decided separately, the contestants may have a jury trial as to them. But- assuming that the question is presented, its answer is found in section 68 of the Surrogate’s Court Act, which contains this: “ In any proceeding in which any controverted question of fact arises, of which any party has constitutional right of trial by jury, and in any proceeding for the probate of a will in which any controverted question of fact arises, the surrogate must make an order directing the trial by jury of such controverted question of fact, if any party appearing in such proceeding seasonably demands the same, and in any proceeding in which any controverted question of fact, arises of which any party has or has not, constitutional right of trial by jury, the surrogate may in his discretion make such order without such demand * * * ” The present proceeding does not present a question of fact “of which any party has constitutional right of trial by jury ” and we do not think that any question of fact presented is one arising in a proceeding for the probate of a will within the meaning of this section. The question of fact there referred to is a fact with reference to the validity of the will; it arises upon an objection filed by the contestants to the probate of the instrument offered. The absolute right to a trial by jury is limited to the issues so raised and does not extend to an issue raised by proponents’ objection against the right of a party to contest the will. The latter is an issue preliminary to and not in “ any proceeding for the probate of a will.” The terms of the statute we think are fully satisfied by this construction. A practice analogous to this prevails in the Supreme Court. There the question whether or not the “ demand set forth in the complaint has been released ” may be presented by affidavit on a motion to dismiss the complaint. If an issue is raised thereon the court in its discretion may try it as a preliminary question. This rule applies though the action, in connection with which it is raised, is one in which on demand a party has a constitutional right to trial of the issues by jury. (Rules of Civil Practice, rules 107,108.) And so here, the question of fact is one of those which the surrogate in his discretion (§ 68, supra) may order tried by a jury. The surrogate has exercised his discretion. The question then is, can we say that he has abused it? If so, it must be because he has not sent to a jury the question of the competency
Having in mind the broad equity powers conferred upon the surrogate by section 40 (supra), we find authority for our holding in Matter of Hamilton (76 Hun, 200); Matter of Peaslee (73 id. 113); Matter of Wagner (119 N. Y. 28, 32, 34); Matter of Comins (9 App. Div. 492).
The question of public policy is introduced. The disposition of one’s property after death is controlled by statute. One of the next of kin has no vested interest in such property. In cases of intestacy a next of kin has such interest as the statute declares. In case there is a will, he has an interest which gives him a standing and right to contest the will. This right is his alone; in it the public has no interest; he may refrain from exercising it, or he may dispose of it as he wishes by release or assignment or settlement, and the law or public policy is not offended. Any woman of sound mind may dispose of her property after death by will as she of her free choice may desire, upon executing her will in accord with the requirements of the statute. Prior to, and in contemplation of, executing such will, she may secure from the next of kin a release of his interest in her estate and an agreement not to contest her will. A will contest is often very expensive. An estate of $1,250,000 is a great temptation to a next of kin who is not satisfied
The order should be affirmed, with costs.
All concur, Cochrane, P. J., in result.
Order affirmed, with ten dollars costs and disbursements.