81 N.Y.S. 575 | 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 was 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, or otherwise. The defendants demur to the complaint on the ground that it does not state facts sufficient to 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 Nellie Hall, a sister of the plaintiff, is the only other next of kin. Then follows 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
“It must be conceded that, strictly and technically, the husband is not next of kin to his wife, nor is the wife next of kin to the husband, and yet it does not necessarily follow that section 399 does not include this case. A thing may well be within the spirit of a statute although not within the letter, or it may be within the letter' and yet not be within the spirit of it; and," as a general rule, where a statute is intended to abrogate a common-law right, or to confer a right not vested by the common law, it will be so construed as not to go beyond the letter, and not even to that extent, unless it appears to be according to the spirit and intent of the act.”
See Murdock v. Ward, 67 N. Y. 387, 391, citing the above case.
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, no real estate being involved (Tillman v. Davis, 95 N. Y. 17, 24, 25, 47 Am. Rep. 1), 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.
Judgment affirmed, with costs. All concur.