Corley v. McEmeel

The instrument purporting to be the last will of Patrick T. Trenor was, .on petition of the executors named therein, presented to the surrogate of the city and county of New York in April, 1888. All the parties claiming as legatees or devisees under the will and all the heirs-at-law of the deceased Trenor appeared in that court, and each, represented by able counsel, took part in the contest there over the probate of the will as a will of real and personal property. The contest was long continued and vigorous, as appears by the papers offered in -evidence. The will, among other grounds, was claimed by the contestants—the heirs-at-law and the attorney general of the State—to have been procured by fraud and undue influence ; and it was decided by the surrogate, who made his decree in October, 1889, “that the execution thereof (the will) by him (Trenor) was procured by fraud .and while he was under restraint and undue influence ; and that the said instrument was null and void as for the last will and testament of Patrick Trenor.” The decree of the •surrogate has not been reversed on appeal or revoked by the surrogate.

The plaintiff in this partition suit contends that the decree is conclusive upon the devisees as to all matters determined by the surrogate.

The defendant, Annie Stover, devisee in the will of this property, sought to be partitioned, and in possession, claims the right to make proof here of the will, notwithstanding the decree of the surrogate.

If this was a new question, it might be regarded as a serious one, and one surrounded with doubts not easily and satisfactorily solved.

There is no doubt but the surrogate had jurisdiction of the subject matter and of all the parties, and had power to make just the decree he did make. Under the well understood general law as to the effect to be given to decrees or judgments, this decree ought to be conclusive. It is conclusive, as all agree, so far as the will

The State inherited from the colonial laws the practice existing in the Prerogative Court—the governor of the colony and his delegate—of forcing wills of personal property to be first probated before they could be offered in cour„t as evidence, and following the colonial law made the probate and denial of- probate conclusive upon all parties.

As early as the Act of April, 1786, the Legislature also provided, touching wills of real estate, “ That where real ■estate shall be devised by will, etc., the executors or other persons interested may cause the will to be brought before the Court of Common Pleas of the county where the lands lie, and the court shall cause the witnesses to be ■examined in open court; and if it shall appear that the

Justice Kent held in Jackson ex dem Woodhue v. Rumsey (3 Johns. Cases, 558), as to this law, “ that it never intended that the proof so taken should be conclusive upon theheir. . . . Nor does there seem to be any ground for. the suggestion that the statute had an eye to this-mode of proof as a substitute for the mode of establishing a will in chancery; for if a question of fraud in obtaining-the will or on the sanity of the testator arises in that court,, it is never tried there, but an issue of law is uniformly directed.”

No material change was made in the law or in the construction given to it by the courts down to the adoption of the Revised Statutes in 1837.

In Bogardus v. Clark (4 Paige, 626), decided in 1834, the chancellor says: “ In this case, however, even if it had appeared from the bill and answer that the parties to-the present controversy were all actual parties to the litigation before the surrogate and upon the appeal, the decision of the chancellor, acting as an Appellate Court of Probate, against the competency of the decedent to-make a valid will of personal estate, would not have been conclusive evidence in this suit of the invalidity of the-devise of the real estate to Mrs. Sawyer, although such devise was contained in the same will which was then in controversy as a will of personal property. . . . The probate courts having the exclusive jurisdiction and right to decide as to the validity of a will of personal estate, but

That before the Revised Statutes it was not necessary to establish, probate or record a will of real estate before .the will could be offered in evidence in an action a£ law, is abundantly shown by reference to Jackson ex dem Burhans v. Blanshan ( 3 Johns. 291 , 292); Jackson v. La Grange (19 Id. 386 ); Jackson v. Luquere ( 5 Cow. 221 ); Jackson ex dem Kellogg v. Vickory ( 1 Wend. 407 ); Jackson ex dem Bowman v. Christman (4 Id. 277, 278); Bogardus v. Clark (4 Paige, 623). The original will might be offered and proved upon trial, though never probated or recorded. And when the will was old and the party claiming under it was in possession, it stood upon a footing with ancient deeds ■and was received in evidence without proof.

The Revised Statutes provided,! 29: “The probate of any will of personal property taken by a surrogate having jurisdiction, shall be conclusive evidence of the validity ■of such will until such probate be reversed on appeal or revoked by the surrogate as herein directed, or the will be ■declared void by a competent tribunal.”

After providing for probate of wills of real estate before a surrogate, ! 15 says: “Every will so proved shall have a certificate of such proof endorsed thereon, signed by the surrogate and attested by his seal of office,

The law so remained without material change until the adoption of the present Code. It is unnecessary to say that the courts have in all cases construed these provisions as to wills of real estate to mean that such a will so probated determined nothing, but simply relieved the-claimant under the will of the necessity of making proof of the will when offered in evidence in an action at law. It became by such probate presumptively established as-the will of the testator. The proof had once been made-in the surrogate court which was to be accepted as a substitute for the proof required in an action at law where an unprobated will was offered in evidence. In other words,, the courts give to the probate by the surrogate of a will of realty precisely the same, force that is given to the certificate of acknowledgement by a competent officer,, which is attached to a deed.

While the statute law does not say in words what effect shall be given to a decree of a surrogate denying probate for any cause whatever, still the courts have uniformly held that the law was not enacted to protect the interest of the heir-at-law alone, and have held that thedevisee under the will is not concluded by such a decree,, and such denial in fact determines nothing against the devisee and nothing in favor of the heir-at-law.

In Harris v. Harris ( 26 N. Y. 433 , 437), WRIGHT, J., says: “ Nor can it be claimed that the probate of a will, not lost or destroyed, in a surrogate court, or one lost or destroyed in the Supreme Court, under the provisions of the Revised Statutes, is in either case conclusive as to real estate. It is conclusive as to personal, but prima facie only

An action had been once brought by the devisees in the Supreme Court to establish the will as a lost or destroyed will, and judgment had been rendered in that action, after a contest by the heirs-at-law, against the will. This judgment in the case above cited was held to determine nothing against the devisees.

We next come to the provisions of the present Code. § 2626, relating to. wills of personal property, reads as follows : “ A decree admitting to probate a will of personal property, made as prescribed in this article, is conclusive as an adjudication upon all questions determined by the surrogate pursuant to this article, etc.” . . Section 2627 reads as follows: “ A decree admitting to probate a will of real property made as prescribed in this article establishes presumptively only all the matters determined by the surrogate pursuant to this article, as against a party who was duly cited or has.offered a person claiming from, through or under him, etc.”

While the language here is different from that used in the Revised Statutes, the meaning is clearly the same, and expresses just the construction placed by the courts upon the provisions of the Revised Statutes.

In the Matter of Will of Gouraud ( 95 N. Y. 256 , 258), EARL, J., says : “ But it was the design of the statute by a general rule to give parties a full and ample opportunity to resist the probate of a will disposing of all of the testator’s property. The opportunity for litigation as to the probate of a will of real estate is still greater under § 15 (Rev. St.). The probate of such a will is never conclusive ; and whenever title to real estate is attempted to be made under it, its validity may be resisted on precisely the same grounds

That it was the intention of the Codifiers to make no change in this respect, if not entirely clear from the new language used by them, becomes clear by reference to their notes upon revision.

It only remains to determine whether the decree of the surrogate and papers connected therewith offered in evidence by the counsel for plaintiff are admissible to establish prima facie the invalidity of the will, or are admissible for any other purpose. As under the stipulation the questions touching the validity of the will must be tried before a' jury, with or without precise questions being framed before trial, this question is hardly pertinent here, since it does not bear upon any other issue in the case. I think it should be left to the decision of the court when that issue shall be tried. ■ The Code provides that a “ decree admitting to probate a will of real property ” is presumptive evidence of all matters determined by the surrogate,.but is silent as to the effect of a decree refusing probate.

The same language is used, however, relating to wills of personal property ; and here, too, the Code is silent as to the effect of. a decree refusing probate. It would, I think, in the case of a decree refusing probate of a will of personal property, hardly be contended that this had not the same force given by the Code to a decree admitting the will to probate. Section 2625 provides as to both wills of personal and of real property that where the surrogate decides “ against the sufficiency of the proof or against the validity of the will,” that he shall make a decree accordingly, and if required must state the grounds of his decision.

The question of the validity or invalidity of the will of Patrick Trenor must go to a jury. If a jury shall find that the will is for any cause invalid, then the real estate in controversy falls to the heirs-at-law subject only to such lien or title of Fitzgerald as may be hereafter determined 'by the-court before which the remaining evidence is taken. If the jury shall find the will valid, and to be the will of Patrick Trenor, then this action fails.