Drake v. Drake

The demurrers of the defendants, Benjamin Drake, Mary F. Drake, Emily T. Smith, Ethelbert H. Smith, Anua T. L. Atterbury and Louis B. Atterbury to the complaint, were interposed upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The demurrer of the defendants, Mary K. Black, Charles N. Black and James Drake Black was-put upon the same ground, and also upon the further

The order sustaining the demurrers is expressly stated to be upon the ground that the court had not jurisdiction of the subject of the action. In so far as this decision affects the demurrers which Avere interposed for the reason that the complaint did not state facts sufficient to constitute a cause of action, it would be a mis-trial because it would not be possible to sustain a demurrer upon any ground other than that upon which it was placed. This does not affect the general principle that the jurisdiction of the court may always be questioned at the trial whether such jurisdiction is challenged by the answer or not. Code of Civil "Procedure, § 499. Nevertheless, inasmuch as one of the demurrers raised the question of the jurisdiction of .the coui't, fit was doubtless deemed advisable by counsel upon both sides to have that question settled for the benefit of ail of the parties, and hence, no suggestion has been made that the decison was in part at least a mis-trial, but, on the contrary, counsel unite in asking us to pass only upon the question that was considered by the special term, namely, that of the jurisdiction of the court to entertain the case as made by the complaint.

The action is brought to determine the validity, construction and effect of certain provisions of the last will and testament of Mary Hopeton Drake and James Drake. The complaint alleges the due execution of the last will of James Drake, and his death subsequently thereto, and the admission of the same to probate before the surrogate of the county of New York, and sets forth the will and "the codicil in haec verba. It then proceeds to set out in detail the description of the several lots of land in the city of New York, including the eleven lots hereinafter mentioned, owned by the testator at the time of his death, of which the plaintiff, Avith others, is in possession. It also contains suitable allegations showing the relationship of the plaintiff with the several defendants to the testator as heirs at law or devisees. The ninth provision of this will reads as follows: “In case of the death of the said Mary Hopeton Drake Avithout leaAfing lawful issue surviving at the time of her decease, then, and in such case, I give and devise to her full power and authority to devise or appoint by her last will and testament, or other instrument in writing, executed by her in the manner hereinbefore mentioned, the said eleven dwelling houses and lots of land last above mentioned, and each and every of them, to all, or any or either of my sisters, Susan Ann Drake, Sarah Ann Lawrence and Mary N. Keene, or to all or any or either of the lawful issue of my said sisters from and after the death of

It further appears that Mary Hopeton Drake survived the testator, and after the death and the probate of the will, she took possession of the eleven lots of land particularly set forth in the complaint and continued to occupy and possess the same until her death. Mary Hopeton Drake, it is shown, died on the 24th day of June, 1884, unmarried and without issue, having previously made her last will and testament bearing date the 14th day of June, 1881, and a codicil thereto bearing date the 21st day of June, 1881, both of which instruments are set out in full in the complaint and were duly admitted to probate by the same surrogate. By the second article of her will she recites the fact of the devise to her of the eleven houses and lots mentioned in the will of James Drake, and the authority to devise the same as therein provided, and then proceeds to make a disposition thereof to sundry persons in different shares. By the first article of her codicil she revokes the devise made in the second clause of her will to James Drake Black, and devises him other property in lieu thereof. She also revokes the devise to Mary Hopeton Smith, and in place thereof gives her other property; and also revokes the devise to Mary Hopeton Drake and gives her other property instead thereof. By the second clause of her codicil she devises to Hopeton Drake Atterbury land on the western side of Broadway in the city of New York, describing it, also premises on Twelfth street adjoining, to have and to hold the same to the said Hopeton Drake Atterbury and to her heirs and assigns forever. And if the devisees should not be living at the time of the death of the testator, then the same should go to her lawful issue equally, and in the

The complaint further alleges that article second of said will of said Mary Hopeton Drake, and articles first and second of her codicil thereto, are void, inoperative and of no effect in so far as they relate to or attempt to devise or appoint or dispose of lands in the complaint particularly described, or any part thereof, and that as to said lands and premises the said Mary Hopeton Drake has failed to devise or appoint the same under law by virtue of the power of appointment given to her in and by the last'will and testament of James Drake. Thence follows a suitable prayer for relief based upon such allegations, and a further prayer that the validity, construction and effect under the laws of the state of Mew York of the will of the S£|id James Drake, deceased, in so far as it relates to the lands and premises mentioned, and the validity, construction and effect under the laws of any temporary disposition of said lands, in that will contained, be determined by tins court; that the validity, construction and effect of the last will and codicil' of Mary Hopeton Drake in relation to the same subject-matter, or of any attempted testamentary disposition of those lands and premises, or any part thereof, in and by the will of Mary Hopeton Drake, be also determined by the court, together with a suitable prayer for injunction and appointment of a receiver, etc.

It will thus be seen what was in the mind of the counsel who drew the complaint, and what questions of law may arise for the determination of the court. We are not asked to make a construction of any of these provisions of the wills respectively, nor to pronounce any of their provisions valid or invalid, but are asked to consider only the question of jurisdiction of the court to entertain a complaint containing these allegations, and by which a construction of this nature is sought. The learned judge, at special term, based his decision upon the case of Weed v. Weed ( 94 N. Y., 243 ). That case holds only that a devisee who claims a mere legal estate in the real property of the testator where there is no trust cannot maintain an action for the construction of a devise, but must assert his title by legal action, or, if in possession, must await an attack upon him and set up the devise in answer to the hostile claim. The court there held that there was no element in the case of equitable jurisdiction, or cognizance, inasmuch as there was no trust provided for by the terms of the will. That decision was in a case arising before the enactment of section 1866 of the Code of Oivil Procedure, upon which the

Section 1866 of the Code of Civil Procedure is as follows: “ The validity, construction or effect under the laws of the state, of a testamentary disposition of real property situated within the state, or of an interest in such property which would descend to the heir of an intestate, may be determined in an action brought for that purpose in like manner as the validity of a deed purporting to convey land may be determined. The judgment in such an action may perpetually enjoin any party from setting up, or from impeaching the devise, or otherwise making any claim in contravention to the determination of the court, as justice requires.” It would seem that by reference to the ninth clause of the will of James Drake, that a trust of a most important character was reposed in Mary Hopeton Drake, and that the exercise of that trust or power in trust, if it be that only, calls upon this court for the exercise of its most important equitable jurisdiction, and a power which is not limited altogether, either by the section of the Code above mentioned, or by previous legislation. This section of the Code is an elaboration only of the statute of 1853, by which the validity of any actual or alleged devise in a will of real estate might be determined by the supreme court in a proper action for that purpose in like manner as the validity of any deed conveying, or purporting to convey lands, may be determined by such court. And we are cited to a decision of the general term in the second department, by which a complaint was sustained under chapter 238 of the Laws of 1853, which sought to declare a will invalid. The law of 1879 (Law's of 1879, chapter 316) simply provides that the validity of a devise or will may be determined by the supreme court in a proper action for that purpose, leaving out entirely the restrictive clause derived from the analogous practice relating to deeds of real estate.

Many cases have been decided by the courts, arising under the statute of 1853', which tend to uphold the contention. made by the counsel for the plaintiff, that even without the section 1866 of the Code, the jurisdiction of the court in this instance could be upheld, and among them are Jones v. Jones (1 How. Pr. [N. S.], 510), Marvin v. Marvin (11 Abbott’s Pr. [N. S.], 102), Wager v. Wager ( 23 Hun, 439 ), Ward v. Ward ( 23 Hun, 431 ), Dubussier v. Holliday ( 35

Brady and Daniels, JJ., concur.