43 N.Y.S. 1119 | N.Y. App. Div. | 1897
This is an. action in equity by the heir at law of Eliza Ann Williams to have her alleged will declared void. The first hearing of the appeal resulted in affirmance of the judgment appealed from,, on the ground that the plaintiff had an adequate remedy at law by virtue of section 2653a of the Code of Civil Procedure. (9 App.Div. 34.) This had been held to be the effect of that section in Lewis v. Cook (89 Hun, 183). But the Court of Appeals on the review of that case held to the contrary, and reversed the judgment. (Lewis v. Cook, 150 N. Y. 163.) Thereupon a reargument of the case at bar was ordered and heard.
It is the common-law right of a devisee of real estate to have atrial by jury in an action at law when the devise to him is in question. And this is said to be a right guaranteed to a devisee or heir by the Constitution. (Corley v. McElmeel, 149 N. Y. 236.) There-is no statute which seeks to confer the right to maintain such an. action in equity. But it has been held that such a common-law right is so far qualified that, when there is no adequate remedy at law, an action like the present one may properly be brought in equity for such relief. This was held by the majority of a divided court-in Brady v. McCosker (1 N. Y. 214). There the original bill was-filed by the person who claimed title as heir of his father *to one-half of the real estate in question, and as heir of his brother, thedevisee of the father, to the other half, to obtain a decree declaring the will of his brother, which had been propounded to the surrogate: for proof, declared void upon the alleged ground that its execution-had been fraudulently and improperly procured by. one of the-defendants. And the alleged reason for seeking the relief in the-equitable jurisdiction was that at the time of filing the original bill the premises were subject to an unexpired trust term created by the will of the father, and part of them to an unexpired lease executed, by such brother of the plaintiff. The question whether the remedy could be sought in equity was raised by demurrer to the bill.. The decision of the vice-chancellor overruling the demurrer was affirmed by the chancellor. ' (McCosker v. Brady, 1 Barb. Ch. 329.) And the view of the court on the final review in affirming-the court below was that the trust was valid, but that if it was-invalid then the lease passed the interest of the lessor for the term
The matters alleged in the complaint in the present case bring it within the doctrine of the Brady case., The purpose of the action is: substantially the.same,.is founded on ¡the merits upon a like alleged . state of facts,, and the alleged reason why the. plaintiff has not an' . adequate remedy at law is that Mrs. Williams, prior to her death,, made leases of certain described parcels of land of which she died seized, to tenants, for terms not expired, and that they then went into and still remain in possession of the premises under such leases. It is true that the terms of the leases are not, nor are the names of the lessees, stated in . the complaint,' But the essential facts of leases to tenants, and tiheir possession. are alleged.. And because the court •might, on motion, require the plaintiff to make his complaint in that respect more ¡definite and certain, it does not follow that the facts . are not sufficiently alleged to give support to the action. Those allegations referred to are not of conclusions, of law, but are of facts from which the conclusion follows that the tenants were in the possession óf the premises by virtue of demises made by the testatrix. Our attention, is called to no case since the Brady pase, similar in principle to it; except Clarke v. Sawyer (2 N. Y. 198), in which no question of jurisdiction was raised until on review in the Court of Appeals, which was too late for an ¡available objection. And in view of the fact that, by being thus permitted to resort to a court of equity for such relief, a plaintiff may deny to an heir or. devisee his common-law right of trial, by jury in the true sense of the term, the doctrine of that case is not entitled to favorable consideration, bécause the denial of such right is practically unnecessary, since the moving party in a proper case inay corpae into a court of equity and obtain injunction against the devisee enjoining him from setting up an outstanding, term as a defense to an ¡action of ejectment. (Jones v. Jones, 3 Meriv. 161; Anderson v. Anderson, 112 N. Y. 108.)
Whatever view we might otherwise have on the subject, the Brady case cannot be here disregarded while it remains undisturbed by the highest court of the State. In the Anderson case, it was •cited without criticism. Nor was there any occasion in that case to review it. There the action was to establish a will against the heirs .at law of the testator, and the Brady case had no necessary application to any question arising there for determination, yet Judge Peokham discussed somewhat questions pertaining to the inherent jurisdiction of a court of equity in a manner not entirely favorable to the doctrine applied in that case. And it is said by one of the ■counsel that the trial court dismissed the complaint upon the •authority of Anderson v. Anderson, where the court remarked that ■“the general policy of this State is and has been to commit to the ■courts of probate' the decision of questions- arising upon the due ■execution of an alleged will.”
While it is true that the mere factum of a will is properly, and .should be exclusively, a matter for the probate court, where the determination otherwise than by review on appeal is conclusive as to the personal property, but is otherwise as to realty, and as the proof of the will in that court is not essential- to a devise made by it, a right of action in support of or in hostility to a devise of real ■estate is not dependent upon any action or proceeding in the Surrogate’s Court for the probate of the will. (Corley v. McElmeel, 149 N. Y. 228.) The purpose of the present action has relation to the will so far only as it purports, to devise the real property of the testatrix. And as the complaint is not entirely barren of allegations ■of facts, other than those of inadequacy of remedy by action at law, properly for consideration in its support, the exception to the dismissal of the complaint seems to have been well taken.
Nevertheless, the question whether the defendant as devisee shall bé denied the right of trial by jury may in the future be presented :in a proper manner for the consideration of the court.
All concurred."
Judgment reversed and new trial granted, costs to abide the final award of costs.
