Clark v. Poor — 56 N.Y. St. Rep. 122

Majority

p. 122

William H. Clark, Resp’t, v. Charles T. Poor, App’lt.

(Supreme Court, General Term, First Department,

Filed November 17, 1893.)

Headnote

Will—Probate.

Section 1861 of the Code of Civil Procedure does not apply to wills which have been duly proved.

Appeal by defendant from a final and an interlocutory judgment sustaining a demurrer to an answer. .

Lamed, Warren & Knapp (W. P. Knapp, of counsel), for app’lt; Redfield & Redfield (Robert L. Redfield, of counsel), for resp’t.

The following facts are alleged in the complaint: November 8, 1892, Anna T. B. De Witt, a resident of the state of Connecticut, died in said state, leaving real and personal property therein, and also real and personal property in the state of New York. She left a last will and testament, executed June 26,1890, in the state of New York, by which she bequeathed to the plaintiff twenty shares of the stock of the American News'Company. December 2, 1892, said will and testament was duly admitted to

p. 123

probate in the county of Fairfield, in the state of Connecticut, and. was duly recorded in the office of the probate court of that county, and letters were duly issued thereon. The will has not been probated in this state. June 6, 1893, this action was begun to have the will proved and established in this state. March 16, 1893, the representative of the estate answered that the twenty shares of stock bequeathed to the plaintiff had been tendered to him, and that he had no interest in having the will proved and established in the state of New York, and demanded a judgment that the complaint be dismissed, with costs. March 18,1893, the plaintiff demurrer to the answer, on the ground “that it is insufficient in law upon the face thereof,” which was sustained, and an interlocutory judgment entered. The defendant not availing himself of the privilege granted to plead anew, a final judgment was entered, awarding the relief demanded in the complaint.

A cause, of action is not stated in the complaint. It is alleged therein that the' will has been duly probated in the state of Connecticut, wherein the testatrix resided and died. It is not alleged that the will or the proceedings by which it was probated have been questioned. Section 1861 of the Code of Civil Procedure, under which this action was brought, does not authorize an action to prove and establish the will of a resident of another state which has been duly probated therein. This section is a re-enactment of §§ 63, 64, 67 and 68, tit. 1, c. 6, p. 2, of the Eevised Statutes, by which it appears that the term “ establishing a will ” means the same as proving a will; and such is the obvious meaning of the term as used in the section of the Code referred to, which has no relation to wills which have been duly proved. Article 7, tit. 3, c. 18 of the Code of Civil Procedure, provides a complete scheme for establishing and giving effect within this state to wills duly probated in other states. A demurrer runs through the entire record, and the court will give judgment to the party who on the whole appears to be entitled to it. The final and interlocutory judgments should be reversed, and the complaint dismissed, with costs.

Van Brunt, P. J., and Parker, J., concur.