41 N.Y.S. 276 | N.Y. App. Div. | 1896
The justice at Special Term sustained a demurrer to the complaint in this action, which was brought to avoid two deeds and to set aside the probate of a will. It was held that two causes of action- were improperly United; but it is distinctly alleged in the complaint that both the deeds and the will were obtained by undue influence, and in furtherance of a "design to secure to the defendant, Dora M. Thomas, the property of the plaintiff’s father, and in effect to induce him to disinherit his children. Upon the allegations of the complaint there is but a single scheme set forth, namely, a fraudulent puiqrose to secure property, in furtherance of which scheme the execution of the deeds and of the will was procured. That a considerable interval of time elapsed between the first and the last steps in the perpetration of this alleged fraud does not affect its inherent quality or the entirety of the cause of action. If the fraud existed, every step taken to consummate it was part and parcel of it.
. It is urged further by the respondent that the suit, cannot be maintained to set aside the will and its probate, upon the well-recognized principle that courts of equity will not take jurisdiction
The judgment and order appealed from should he reversed, with costs, with leave to the defendants to answer within twenty days on payment of costs.
Van Brunt, P. J., Barrett, Rumsey and Williams, JJ., concurred.'
Judgment and order reversed, with costs, with leave to the defendants to answer within twenty days on payment of costs.