16 N.Y.S. 273 | N.Y. Sup. Ct. | 1891
The manifest purpose of this action was to correct the mistake of the decedent in signing the wrong will; in other words, it was to reform the will signed by him by changing the provisions therein so as to make them conform to the provisions contained in the will which he intended to sign. The appellant contends that authority to maintain such an action is given by section 1866 of the Code of Civil Procedure, which provides: “The validity, construction, or effect, under the laws of the state, of a testamentary disposition of real property situated within the state, or of an interest in such property, which would descend to the heir of an intestate, may be determined, in an action brought for that purpose, in like manner as the validity of a deed purporting to convey land may be determined. ” This statute was under consideration in the case of Anderson v. Anderson, 112 N. Y. 104, 19 N. E. Rep. 427, and it was there held that a devisee of a legal estate, in possession of the property devised, could not maintain an action to establish a will against the heirs at law; that courts of equity in this state have no inherent jurisdiction to entertain such an action, and it is not given by the provisions of the Code (sections 1866, 1867) authorizing the determination, “in an action brought for that purpose,” of the questions as to “the validity, construction, or effect under the laws of this state of .a testamentary disposition of real property;” and that these provisions refer, not to the validity of the will making the disposition, but simply to the validity of the disposition so made. In discussing the effect of this statute, Peckham, J., said: “This language would seem to provide for the case of a devise contained in an instrument where due and proper execution is assumed, but which devise was to be adjudged good or bad, as it should be determined that it was in accord with or against the law upon the subject of such devise.” Under the doctrine of this case, we regard it at least as very doubtful if this action could be maintained.
If, however, we assume that the court had power to entertain such an action, we then come to the question whether it was authorized to grant the relief sought. The plaintiff contends that the court had the power, and it was its duty, to have held that the will signed by the decedent might be changed or reformed, and to have reformed it so as to make it conform in all respects
In this case the plaintiff and her husband each intended to make a will. They were alike, mutatis mutandis. ■ By mistake each signed the one prepared for the other. It is manifest that the decedent never intended to execute the will signed by him. None of the provisions contained in it expressed his intended disposition of his property. The will he intended to make was that signed by his wife. We are unable to perceive how it can be properly said that he executed his will. The evidence shows conclusively that he did not. It was his wife’s will that he executed. He intended to make a will, but by mistake that intent was frustrated. Suppose, instead of signing the will of his wife, he had, through a similar mistake, signed a deed, or a blank piece of paper, is it possible that the court could, when satisfied that he intended to make a will containing certain ascertained provisions, transform such deed or blank paper into the will he intended to make? If not, how does this case differ? In either ease, the will he intended to make was not executed by him. If the court would be authorized to alter the paper lie signed in this case, so as to make it the will that he intended, why might it not as well so change the deed as to make it his will, or write his will upon the blank paper signed by him? To avoid confusion, we should keep in mind the fact that the question here is not what construction should be placed upon a paper executed by the decedent, and intended as his last will and testament. The fundamental error in this case was not in the employment in his will of language that was ambiguous, uncertain, or which did not correctly express the decedent’s intention. It lies in the fact that the paper sought to be established as his will was never intended by him as such. His intention was to make another will, which he had prepared, but not executed. Therefore the .single question is whether the decedent left a will. It was said by Earl, J., in Rollwagen v. Rollwagen, 63 N. Y. 517: “A party who offers an instrument for probate as a will must show satisfactorily that it is the will of the .alleged testator, and upon this question he has the burden of proof. If he fails to satisfy the court that the instrument speaks the language and contains •.the will of the testator, probate must be refused. The laws in reference to the distribution of the estates of persons dying intestate are founded upon ■principles of public policy and justice, and must regulate the transmission of property, unless a person before death has, in the mode prescribed bylaw, himself provided how his property after his death shall be disposed of. As :said by Judge Davies, in Delafield v. Parish, 25 N. Y. 9, 35: It is not the duty of the court to strain after probate, nor in any case to grant it where .grave doubts remain unremoved, and great difficulties oppose themselves to so •doing.’ And this was substantially the language of Lord Brougham in Panton v. Williams, 2 Curt. Ecc. 530.” Independent of the authorities which will
We have been cited to no case in this state, and have found none, where this precise question has been decided. We, however, find that it has been determined adversely to the appellant by the courts both of England and Pennsylvania. The first case where this question arose to which our attention has been called is In re Goods of ___, 14 Jur. 402, decided in 1850. In that case two unmarried sisters, who lived together, were anxious each to make a will giving to the other, whichever of them might survive, the property they mutually possessed. Accordingly, two wills were drawn up, the language and contents of which were precisely the same, except the name of the person in whose favor the bequests were made. This was done by a solicitor, their brother-in-law. Shortly after the wills were so drawn up they were signed at the same time by the two sisters, in the presence of two witnesses, and, as was supposed at the time, were duly and properly executed; but upon the death of one of these ladies it was discovered, when looking at what was thought to be her will, that the signature of the living sister was atlixed to that will instead of that of the intended testatrix, and that the signature of the deceased sister was affixed to the will of the living one. It was evident from this that a mistake had been made when the wills were signed, each having unintentionally signed the other’s will. Application for the probate of the will of the deceased was made on the suggestion that a court of equity might put a construction on the contents of the one then before the court: Sir IT. Jbnner Fust, who delivered the opinion of the court in that case, said: “Two ladies lived together, and they determined to make what I may call ‘ mutual wills.’ The wills are the same, mutatis mutandis;' they were drawn up and executed—that is, if executed they are—at one and the same time, but unfortunately each signed the other’s will. After the death of one of them the solicitor alters them, so as to make the will of one appear as that of the other, and I need scarcely say he has erred in so doing. But what is to be done with this paper? It is not the will of the deceased, and it purports to give all her property to herself,—a manifest absurdity. I must reject the motion. ” The same doctrine was held in Alter's Appeal, 67 Pa. St. 341, which was decided in 1871. In that case a husband and wife had wills prepared, giving their property to each other. By mistake each signed the other’s will. After the husband’s death an act of assembly was passed authorizing the court to hear testimony, and, if the mistake was proved, to reform the will. In that case it was held that the right of the husband’s heirs had vested on his death, and the act was invalid; that the husband had executed no will, and there was nothing to reform. In delivering the opinion in that case, Agnew, J., said: “This is a hard case, but it seems to be without a remedy. An aged couple, husband and wife, having no lineal descendants, and each owning property, determined to make their wills in favor of each other, so that the survivor should have all they possessed. Their wills were drawn precisely alike, mutatis mutandis, and laid down on a table for execution. Each signed a paper, which was duly witnessed by three subscribing witnesses, and the papers were inclosed in separate envelopes, indorsed, and sealed up. After the death of George A. Alter the envelopes were opened, and it was found that each had by mistake signed the will of the other. To remedy this error the legislature, by an act approved the 23d day of February, 1870, conferred authority upon the register’s court of this county to take proof of the mistake, and proceed as a court of chancery to reform the will of George A. Alter, and decree accordingly. Proceedings were had resulting in a decision of the register’s court that there was no will, and that the act to reform it was invalid, the estate having passed to and vested in the collateral line of kindred. From this decree an appeal has been taken by Catharine Alter. On
I have quoted thus fully from these cases for the reason that the facts were
All concur.