2 N.Y.S. 820 | N.Y. Sup. Ct. | 1888
The plaintiff is a legatee under the will of Cornelia M. Stewart, deceased. This legacy was given by the third paragraph of the will, amounting to the sum of $250,000. By a third codicil to the will, the testatrix also gave, devised, and bequeathed to her an equal half part of the share of her property and estate previously devised and bequeathed to her nephew, Charles J. Clinch. Under this paragraph of the codicil, she became entitled to an equal undivided one-quarter of the residuary estate of the testatrix. This action has been brought by her to maintain and enforce the provisions of the will and codicils made in her favor. And in support of it she has alleged that the defendant Henry Hilton, by means of undue influence and fraudulent representations upon his part, induced the testatrix to transfer and convey to him the principal portion of the residuary estate, thereby diminishing the quantity which she would otherwise have received under this devise and bequest. And by way of relief in this action she has demanded that the transfer and conveyances shall be set aside, and the defendant Henry Hilton required to account for her share in this property, the same as though the transfer and conveyances had not been made. The answers included in the motion to strike out portions of them were served by other relatives of the testatrix, who were made parties to the action, as persons interested and to be affected by its disposition. By their'answers they have set forth and alleged that the will, and the codicils following it, were obtained from the testatrix by the defendant Henry Hilton through the use on his part of undue influence over her, and by fraudulent representations made to her; and on that account both the will and the codicils are objected to as being invalid and void against these defendants. The answers containing these allegations have been served upon the attorney for the defendant Henry Hilton; and it was in his behalf that the motion was made to strike out these allegations, together
Section 1866 of the Code of Civil Procedure has provided, in certain specified cases, for the maintenance of an action to test the validity of a testamentary disposition of real property within this state, or of an interest therein. This, it has declared, may be done in like manner as an action to determine the validity of a deed made for the conveyance of land. But this section has been considered not to include cases of this description, (Anderson v. Appleton, 48 Hun, 534;) and it has not allowed or provided for a defense by way of answer, to include this subject; but the right, when that shall exist, is to be asserted and prosecuted only by means of an action. And while, by sections 500, 501, and 502, causes of action may be brought into the litigation by way of answer, as counter-claims, the provisions made for this purpose are not so broad as to include a cause of action within this section, or of this description; for the causes of action which may be brought into the litigation by way of counter-claim are restricted to such as arise out of the contract or transaction set forth in the complaint, or are connected with the subject of the action, or a claim upon a contract, alleged by way of couüter-claim, when the action itself is on contract. This defense falls within neither of these provisions. It certainly is not a caus.e of action on a contract, neither is it a cause of action arising out of the transactions set forth in the complaint as the foundation of the plaintiff’s demand, nor connected with the subject of that action; but, on the contrary, as the allegations are contained in the answers, it. is proposed, under them, to subvert the action of the plaintiff en
Van Brunt, P. J., concurs.