82 A.D. 419 | N.Y. App. Div. | 1903
This action is brought under the provisions of section 2653a of the Code of Civil Procedure to obtain a judgment declaring invalid the last will and testament of Susan S. Allen, deceased, which w.as duly admitted to probate by the surrogate of Kings county. The plaintiff is a niece' of the testatrix, and shows by her complaint- that she is not mentioned in the will as devisee, legatee of otherwise. The defendants demur to the complaint on the ground that it does not state facts sufficient tó constitute a cause of action, and these demurrers have been sustained, the plaintiff appealing.
The complaint alleges the death of the testatrix; that the plaintiff is of the - next- of kin of said Susan S. Allen, being a niece; the probate of the will and the appointment of Joseph A. Burr sole executor. thereof. It sets forth the interests of' the other defendants, alleges that William F. Allen is the. surviving husband, and that the defendant Nellié Hall, a sister of the plaintiff, is the -only other next of kin. Then.follow the usual allegations bringing into question the validity 'of the will. This is a statutory proceeding, and the plaintiff to maintain her action must bring herself within the provisions of the statute. There is no allegation in the complaint that, the testatrix died.seized of any real'estate, or in fact of any property, though it may be' assumed, from the fact that she made a will, that she had property to dispose of. The plaintiff has, therefore, no' standing as an heir at law. In fact, she makes no. claim as an heir at law, hut alleges that she is of the next of kin of the testatrix. She does not allege that the testatrix did not -leave descendants, although' this may be inferred from the allegation as
While the plaintiff is, under -her allegations, the next of kin of the testatrix, we are of opinion that in view of the fact that the testatrix died without leaving descendants, and being survived by a husband, the latter, if the will should be declared void, would take the personal property under the common law and his marital rights (Robins v. McClure, supra), so that he is, within the- spirit of the statute, the next of kin, and the plaintiff, not being an heir at law, mo real estate being involved (Tillman v. Davis, 95 N. Y. 17, 24, 25), has no standing to bring this action. The complaint, therefore, fails to state facts sufficient to constitute a cause of action, and the demurrers were properly sustained.
The judgment appealed from should.be affirmed.
Bartlett, Hirsohberg, Jenks and Hooker, JJ., concurred.
Judgment affirmed, with costs.