Hawke v. Hawke — 26 N.Y.S. 803

Majority

p. 803

HAWKE v. HAWKE et al.

(Supreme Court, General Term, Third Department.

December 27, 1893.)

Headnote

Wills—Action to Annul Pbobatb—Injunction Pendente Lite.

In an action to annul the probate of a will, an injunction restraining the executors from disposing of " any of the property, real or personal, will be modified so as to restrain only a disposal of the real estate, where It appears that the value thereof Is sufficient to secure plaintiff's rights In case he obtains a judgment

Appeal from special term, Saratoga county.

p. 804

- Action by Edward H. Hawke against Madison Genn Hawke, individually and as executor, and Julia Alice Isabelle Beimer, in' dividually and as executrix, of the instrument admitted to probate as- and for the last will and testament of Edward H. Hawke, deceased; Elizabeth Matthews Christopher Wilson; and Susie Bars-tow Skelding,—to determine the validity of the probate of the will and codicil of Edward H. Hawke, deceased, and to revoke, annul, and declare invalid the probate thereof, to declare the alleged will null and void, and for such further relief as may be just. From an order granting a temporary injunction, and continuing the injunction pendente lite, defendants appeal.

Modified.

The order granting the injunction is as follows:

Ordered, that the defendants above named, and each of them, be, and they are, restrained and enjoined from conveying or disposing of any of the property, real or personal, belonging to the estate of Edward H. Hawke, deceased, or in any manner incumbering the same, or in any manner or form interfering with said property, except for the protection of said property and to take an inventory thereof, until the hearing and decision of the-motion for an injunction herein, to be heard at the time and as provided in. the notice of motion above mentioned, and until the entry of the order upon the decision of said motion.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

Henning & McCall, for appellants, the executors.

Edgar T. Brackett, for appellant Wilson.

Foley & Wing, for respondent E. H. Hawke.

J. S. L’Amoreaux, for Maria T. Hawke.

Charles E. Patterson, for defendant Skelding.

We have grave doubts as to the propriety of granting the injunction herein, and are strongly disposed to reverse the order granting it; but there is a possibility that the plaintiff may be injured by so doing, and the rights of all parties, it seems tons, will be preserved by a modification of the injunction. It appears from the record before us that the property involved in this litigation amounts to about the sum of $350,000; $100,000 thereof being in personal property, and the remaining $250,000 being in realty. If the plaintiff succeeds in establishing the invalidity of Ms-father’s will, he will be entitled to one-fourth part of that estate. It will thus be seen that the realty affords abundant security for his-protection if it remains undisposed of or unincumbered. The injunction, therefore, is modified so as to restrain the defendants herein from conveying, disposing of, or incumbering any of the real estate of which the testator died possessed, and from conveying and delivering or passing over any of the said real estate to the devisees- or legatees named in the last will and testament of said testator; it being intended by this modification of the injunction to give the defendants entire control over the principal and interest of the personal property, and of the rents, incomes, and profits of the real estate; subject, of course, to their accounting for the same as the executors of the last will and testament of Edward H. Hawke, deceased, in the event of the plaintiff failing in the action, or of ac~

p. 805

counting to the plaintiff for his share thereof in the event of Ms succeeding in establishing the invalidity of said will; and, as so modified, the injunction and order appealed from is affirmed, with $10 costs and printing and other disbursements to the appellants. All ■concur.