3 Barb. Ch. 477 | New York Court of Chancery | 1848
The complainants are not in a situation to contest the validity of the will of John G. Leake, which was admitted to probate, so far as respects the due execution of such will. For under the provisions of the revised statutes no one can be liable to account to the next of Icin, as an executor of his own wrong. And if J. Watts and H. Le Roy received and disposed of the property of Léate, without having been duly appointed his executors, or duly authorized to act as such, they are liable to his personal representatives, whenever such shall have been appointed; but not to the complainants. (2 R. S. 449, § 17.) The proper course for the1 complainants, in that case", would be to procure the appointment of an administrator, and have a suit instituted in his' name, to recover the
On the other hand, if the will of Leake has been duly admitted to probate, so as to render' the appointment of the executors valid, and to give the next of kin a claim upon them for the property of the testator which was not validly and effectually disposed of by his will, the complainants were bound to state what the testamentary instrument was upon which the surrogate granted letters testamentary to the executors; so that the court might see whether Leake had in fact died intestate as to any part of his personal property. The present bill, therefore, is fatally defective, in these particulars.
It would be useless also for the complainants to amend their bill in this respect. For, out of the bill, it is well known to the court that the testator’s will, which was admitted to probate under the decree of a, court whose decision must be considered as binding upon all other tribunals in this state, actually disposed of all his personal estate. And as the only question as to the validity of the execution of that will depended upon a question of law, there is no probability that a different result would be arrived at, even if there was any way in which these complainants could bring the question of the due execution of that will again before the probate court for decision. Although the will in this case had been proved in a plenary proceeding, as between the parties who appeared and contested it in the higher courts, the next of kin, w'ho had no notice of that proceeding, and which occurred before the adoption of the revised statutes, might perhaps have cited the executors to bring in the probate, and to prove the will in a plenary form as to them, in the same manner as they could have done if it had been proved in the common form by a summary proceeding only, had they applied to the surrogate within a reasonable time. That appears to have been almost a matter of course, in the practice of the probate courts in England. And was very proper in our probate courts, until the revised statutes made all proceedings to prove wills plenary, in substance, by requiring all parties
The demurrers of the Trustees of the Leake and Watts Orphan House, and of the other defendants who have demurred, and whose demurrers were not allowed at the hearing, must be allowed; and the bill as to those defendants respectively must be dismissed, with costs.