Caulfield v. Sullivan

Henry Yelverton, a citizen of this State’, died in France, where he'had resided for several years, on the 30th of September, 1873, leaving at his death a will executed in Paris on the prior 20th day of September, and a codicil thereto, executed three days thereafter. The will and codicil were subsequently admitted to probate in the Surrogate’s Court of the county of Flew York. Letters of administration with the will annexed were subsequently issued to the defendant Sullivan. The plaintiff had resided with the testator in France, and subsequently to his death, in 1875, she presented two claims against his estate, amounting to over $20,000. Such claims were by consent, by an order of the Special Term made in February, 1879, referred to a referee. The case was brought to trial before the referee, and in June, 1879, he made his report in which he found that on or about the 1st day of January, 1867, the testator borrowed from the plaintiff $12,500, which he agreed to repay on demand with interest at the rate of seven per cent, and that on the 20th of October,

We are of opinion that the case was properly disposed of. The testator in his will provided as follows : “ I appoint Miss Hannah Maria Caulfield, living with me, to be my universal legatee, consequently I leave to her the whole of the real and personal property which shall belong to me on the day of my decease, and which shall compose my succession, on condition that she execute the disposition hereinafter contained, and any others which I may make hereafter. I bequeath to my two brothers, first, Mr. Eobert Yelverton of Hew York, second, and Mr. Charles Yelverton of San Francisco, to be divided between them in moieties, all .the real and personal estate which shall belong to me, in America, on the day of my decease without exception.” In the codicil, after referring particularly to the will, it is stated as follows: “ Whereas, by my said will, I have devised and bequeathed all my property, situated on the continent of America, to my brothers Eobert and Charles equally, now it is my will and I do hereby confirm the said devise and bequest, and in order to facilitate the realization of my property, situated on the continent of America, I do hereby appoint my said brother Eobert executor as to such property, and except as aforesaid I do hereby expressly ratify and confirm my said last will and testament.”

The testator left real and personal property, both in France and the United States. After the death of the testator, Miss Caulfield took possession of the property left by the testator, in France, and soon thereafter she declared to Mrs. Yelverton,

Hnder such circumstances, the provision made for-her in the will, and her acceptance thereof, must be deemed a satisfaction of her claim against the estate. It is manifest that it was the intention of the testator that his brothers should receive all his American property, for the exact language of the will is, that they should receive it “without exception; ” and it is upon the condition that they should so receive it, and that she would execute that portion of the will, that she was made the universal legatee of all his other property. It was in the contemplation of the testator that she would either surrender her claims against the estate or obtain satisfaction of them out of his property in France, and it would defeat his manifest intention if the property given to his brothers was to be diminished by the amount of her claims, for then they would not receive it “ without exception.” It is clearly inferable that the testator, leaving considerable property, in France, did not intend that she should cross the Atlantic and enforce her claims against the property given to his brothers; and .this inference is somewhat strengthened by the fact that in his codicil he appointed his brother Robert executor as to his American property, leaving her as universal legatee to execute his will as to the property in France. She could not enforce her claims against the American property, and, at the same time, see to it that that portion of the will which gave such property to his brothers was executed.

This, therefore, was a case where she was bound to elect whether she would retain her claims and enforce them against the testator’s property, or abandon them and take the property given to her. She could not take a benefit under this will and refuse the burden it imposed upon her. The effect of the will is the same as if the testator had given his American property

As the testator was a citizen of this country, claiming his domicile here, but temporarily residing in France, his will must, in our courts, be construed according to our laws, and hence the rules of construction above referred to are applicable. If Miss Caulfield had made her election under such circumstances that she could have revoked it, it does not appear that she ever did revoke it, or that she ever surrendered, or offered to surrender, any of the property which she took in France. The testator died, and her election" was made in 1873; her claim against the estate was formally made in 1875 ; and her casé was tried in 1879 ; and there is nothing showing that she did not have the full benefit of the property of which she took possession in France. There was, therefore, no error in holding that she was bound by her election.

It is claimed, however, that the will was not sufficiently proved. Upon the trial before the referee the defendant produced the records of the surrogate’s office in 17ew York, which showed that the will was admitted to probate as to personal estate only upon the production to the surrogate of a duly anthenicated copy from under the seal of the court in which the same was proved ; and that the codicil was proved by the evidence of witnesses taken upon commission; and the record contained a copy of the will in French, the language in which

It is not disputed that the execution of the codicil was sufficiently proved. The claim is that the will was not sufficiently proved and that the surrogate did not acquire jurisdiction to prove it. There are two'answers to this claim : First. The testator was a citizen of this country having a domicile at the time of his death in the city of H ew York, and he left property there. The surrogate, therefore, had jurisdiction to take proof of' his will, and to admit it to probate no matter where it was made, or where he died. If he admitted it to probate without sufficient proof, or without the proof or the formalities which the law requires, it was a mere error in the exercise of his jurisdiction and not judicial action without-jurisdiction, and süch error could be corrected only by application to the Surrogate’s Court or appeal from its decree.

It is provided in section 1 of the act Chapter 359 of the Laws of 1870, that “ the surrogate of the county of Hew York shall have powér and jurisdiction to issue all lawful process, upon allegations duly verified, and to make and enter all lawful orders and decrees in proceedings in the Surrogate’s Court of said county, and the objection of want of jurisdiction shall not be taken to said orders and decrees except by appeal in the manner prescribed by statute, or in a proceeding before the surrogate to set aside, open or modify the same, and the surrogate shall have the same power to set aside, open, vacate or modify the orders or decrees of the said court as is exercised by courts of record of general jurisdiction.” This law is a sufficient answer to this collateral attack upon the probate of the will, without reference to decisions leading to the same result to which our attention has been called. (Bearns v. Gould, 77 N. Y. 455 .)

Second. The codicil distinctly referred to and identified the will and reaffirmed the same, and hence the will and the codicil together constituted the will of the testator; the provisions of

Objection was made that the English copy of the will contained in the record was no part of the probate. We think it was. It appears in 2 Fedfield on Wills (2d ed.), p. 45, that “ it is requisite, where the will is in a foreign language, that the probate should contain a translation of the same into English,” and such plainly must be the law. Suppose a will be executed in Latin, Greek or Arabic, with the formalities required by our statute, what is to be done with it when it is presented for probate? Its execution must be proved in English. The precise language in which the will is written is of little significance; whether it be in our language or another is of no importance. The will of the testator is to be ascertained from the meaning which he has expressed, in whatever language; and that meaning, put into proper English, must, in a court required to use the English language, be taken as the testator’s will and placed upon record. There can be no necessity for recording it in the foreign language; and yet the practice of recording in both languages, where that can be done, is quite proper. It was the duty of the surrogate, in this case, to ascertain what the will of the testator, written in a foreign tongue, was; and the translation which he has recorded must be treated as part of his decree, unassailable collaterally, like the rest of it.

Our attention has been called by the learned counsel for the appellant to the case of DFitt v. DBatt (1 P. Wms. 527). In that case there was a French will, the original whereof was proved in French, and under it, in the same probate, the will wa6 translated into English, but it appeared to be falsely translated. It was objected that the translation, being part of the probate, and allowed in the spiritual court, must bind, and that the application must be to the spiritual court to correct the mistakes in the translation, which, until then, must be conclusive. The master of the rolls said that “nothing but the original is part of the probate, neither hath the spiritual court power to make any translation; and supposing the original will

We have, therefore, reached the conclusion that the judgment should be affirmed, with costs.

' All concur.

Judgment affirmed.