216 A.D. 72 | N.Y. App. Div. | 1926
The action was brought for the partition of certain real property located in the State of New York, of which one James A. Lowe, a resident of the State of New Jersey, died seized and possessed. The deceased was survived by the plaintiffs, his son and daughter, and by his widow, since deceased. Under the will of the latter, the plaintiffs have succeeded to any interest which she may have had in the estate of her deceased husband.
The complaint alleges that the said James A. Lowe died on or about the 13th day of October, 1923, leaving a last will and testa
The answer, in addition to denials, as a separate defense, alleges that the will in question was admitted to probate on consent of the plaintiffs, pursuant to an agreement of settlement entered into between the plaintiffs, the deceased widow of the testator and the defendants Somerset Hospital, St. Vincent’s Hospital and St. Luke’s Hospital; that the executor of the will had entered into a contract for the sale of the property located in New York, with the exception of one parcel thereof, and that plaintiffs had accepted payments under the said settlement agreement.
Plaintiffs, in reply, allege that the agreement upon which the probate was had was void, in that it was without consideration; that it was not executed by the executor and trustee under the will and that it was ineffective as to real property situated in the State of New York in that it attempted an unlawful suspension of the power of alienation of said property. Further, that plaintiffs were not apprised of their rights under the laws of the State of New York; that at the time they entered into the said agreement they were over the age of seventy years, not conversant with
Even if it be assumed that the decree admitting the will to probate in New Jersey is a valid and binding decree, nevertheless, in so far as the will disposes of real property situated in the State of New York, the law of this State governs, and the construction, validity and effect of the will must be determined thereunder. The general rule applicable is well stated in 32 Cyc. 674, as follows: “ It is a principle firmly established that the law of the State wherein real estate is situated * * * controls and governs its descent and alienation; the construction, validity, and effect of wills and other conveyances thereof; and the capacity of the parties to such contracts or conveyances, and their rights thereunder. This rule is without exception, and it is not in the power of any State by any legislative act to prescribe the mode in which lands in another State may be disposed of or title thereto passed from one person to another.”
In Monypeny v. Monypeny (202 N. Y. 90, 92) the court, through Cullen, Ch. J., said: “ The Code of Civil Procedure (§ 1866)
Under section 17 of the Decedent Estate Law (as amd. by. Laws of 1923, chap. 301) a question arises as to whether the will attempted to dispose of New York real estate in violation thereof. The respondents contend that any rights derived from the section of the af oresaid Decedent Estate Law may be waived, and contend that any such rights in the plaintiffs have been waived by the aforesaid settlement agreement. In so contending, however, the respondents overlook the fact that the validity of the very agreement upon which they rely as constituting a waiver is in issue.
If the motion be considered as a motion not under rule 113 for a summary judgment or under rule 112 for judgment on the pleadings, but under rule 104 of the Rules of Civil Practice to strike out the reply as sham, then no affidavits are permitted, since the only question to be determined under said rule is whether the answer or reply, upon its face, shows a colorable defense. (King Motor Sales Corporation v. Allen, 209 App. Div. 281.)
Thus the defense of an agreement pleaded in the answer and the allegations attacldng its validity in the reply, in and by themselves raise issues which must await a trial.
The respondents further rely on the fact that the executor has entered into a written contract providing for the sale of all except one parcel of the real estate, pursuant to a power of sale contained in the will, and contend that, therefore, there has been a conversion of such real property into personalty. The appellants, however, contend that the will itself gave to charity more than one-half of the estate, in contravention of the aforesaid section 17 of the Decedent Estate Law, being chapter 13 of the Consolidated Laws of 1909 (Laws of 1909, chap. 18, as amd. by Laws of 1923, chap. 301). If more than one-half of the estate was so given by the testator to charity (which is one of the issues to be tried), then the power of sale was a part of the effectuation of this prohibited result, and hence said contract of sale would be invalid in accordance with the authorities. In Jones v. Kelly (170 N. Y 401, 407) the court, in discussing a similar claim that the execution of a power of sale effected an equitable conversion of the real property into personalty, said: “But this claim assumes, necessarily, that the will, by valid provisions, commanded that all of the estate be
It, therefore, follows that the contract for the sale of the realty relied on by the respondents is no defense upon this motion.
The respondents further contend that in any event the complaint was properly dismissed as to Eugene N. Lowe, as executor of Clara Josephine Lowe, the deceased widow of the testator. In this contention the respondents are correct. Said Clara Josephine Lowe, while alive, had only a right to have her dower admeasured. Upon her death, before suck, admeasurement, all her interest in the real property of her deceased husband ceased. In Youngs v. Goodman (240 N. Y. 470) it was said by Pound, J.: “ The widow had filed her consent to receive a sum of money in lieu of dower and the only question was whether plaintiff at the time of her death was vested with the right to such sum which passed to her executors. It was held that the proceedings .had reached such a stage before plaintiff’s death as to vest in her such right. Here the wife made no election to take the fund set apart for her but allowed it to remain on deposit with the chamberlain until her death. She exercised no dominion over it. The money was ordered to be paid over to her but it was not paid. The rights and interests of the husband and wife are now fixed. Her right of dower terminated with her death. ■ The wife could assert her right to the fund only during her life and when she took no proceedings to withdraw the fund the right thereto abated absolutely at her death.”
It follows that the judgment and order appealed from should be modified by reversing the same in so far as they dismiss the complaint, except as to Eugene N. Lowe, as executor of the estate
Dowling, Merrell, McAvoy and Martin, JJ., concur.
Judgment and order modified by reversing the same in so far as they dismiss the complaint, except as to Eugene N. Lowe, as executor, etc., and as so modified affirmed, with costs to appellants. Settle order on notice.
Sic. See Consol. Laws, chap. 13 (Laws of 1909, chap. 18), § 17, as amd. by Laws of 1923, chap. 301.— [Rep.
Now Decedent Estate Law, § 205, as added by Laws of 1920, chap. 919.— [Rep,