Anderson v. Anderson

• Decision Date: 15 January 1889
• Citation: 112 N.Y. 104,19 N.E. 427
• Parties: ANDERSON v. ANDERSON et al.
• Court: New York Court of Appeals Court of Appeals

112 N.Y. 104

19 N.E. 427

ANDERSON

v.ANDERSON et al.¹

Court of Appeals of New York.

January 15, 1889.

Appeal from supreme court, general term, First department.

Action in the supreme court by John Charles Anderson against Kate Anderson and others to establish a will under which plaintiff claims as devisee.

Calvin Frost, for appellant.

Edward C. James, for respondents.

PECKHAM, J.

This action is brought to establish, by a judgment of the supreme court, the will of the late John Anderson. The case comes here on an appeal from an order of the general term reversing an order of the special term granting an injunction restraining defendants from the prosecution of any action based upon the in validity of the alleged will. Ordinarily no appeal lies to this court from an order dissolving an injunction, but the general term has incorporated in its order a statement that the order of the special term granting the injunction is reversed, on the ground that the action cannot be maintained, and hence a question of law is raised which is reviewable here. Allen v. Meyer, 73 N. Y. 1;Tolman v. Railroad Co., 92 N. Y. 353.

The will which is here sought to be established devises the absolute title in fee-simple to the larger part of the estate of the testator to the plaintiff, and he or his vendees are in possession; and the question to be decided is whether a devisee of the legal estate, being in possession of the property devised, can maintain an action to establish the will against the heir at law. It is claimed that such an action could be maintained in England, and that the old court of chancery in this state could have taken cognizance thereof, and that such jurisdiction was transferred to the supreme court under the present constitutionas an inherent, equitable jurisdiction of that court. It is also claimed that it exists by virtue of chapter 316 of the Laws of 1879, or, if that has been repealed, that it still exists by virtue of sections 1866 and 1867 of the Code of Civil Procedure.

We think that the jurisdiction claimed does not exist in this state. The question has been decided in England in a manner favorable to the views of the learned counsel for the plaintiff. In was so decided in the case of Boyse v. Rossborough, Kay, 71, on appeal in chancery, (3 De Gex, M. & G. 817,) and in the house of lords, (6 H. L. Cas. 2,) in 1857. The affirmance in the house of lords was upon the admission of the counsel that such an action would lie. By the several opinions of the learned judges it appears that they were unable to determine the origin of the jurisdiction with any certainty, but the claim that it was to be limited to cases in which trusts were created by the will was not thought by them to be satisfactory. They said there was no special equity against the heir which arose by reason of the existence of the trusts, because the only question in which he was interested was the question of will or no will, which existed just the same whether trusts were or were not created by the instrument. It is true that the question in which the heir is interested is whether there is or is not a will, and still the jurisdiction of chancery to establish the will might depend upon its general jurisdiction over trusts, and that jurisdiction might depend upon the question of whether there was a valid will or not; and thus, by reason of its jurisdiction over trusts, it could exercise the incidental jurisdiction of establishing the instrument in which they were created as properly executed by a competent testator.

However that may be, the case cited does decide that such an action could be maintained in England. In a note to the report of the case in 3 De Gex, M. & G. 817, it is stated that by reason of the passage of the act of 20 & 21 Vict. c. 77, § 12, providing for the probate of a will of real estate in a court of probate, the practice of establishing it in chancery is of comparatively rare occurrence. The English rule is stated in Pomeroy's work on Equity Jurisprudence, (3 Pom. Eq. Jur. § 1158,) and in a note it is said that the sole ground of the jurisdiction was a condition in England which does not exist in a single American state, and no longer exists in England because of the passage of the act of 20 & 21 Vict., supra, establishing courts of probate for wills of real estate.

In this country jurisdiction is granted to courts of probate to pass upon the question of the due execution of wills of both real and personal property, and, unless special and exceptional cases are shown to exist for the interposition of a court of equity, bills for the mere purpose of establishing a will in equity in the case of a devisee of a legal estate who is in possession under the will ought not to be maintained.

Story, in his work on Equity Jurisprudence, (2 Story, Eq. Jur. § 1447,) gives the English rule on the subject, and cites no American case to sustain it. Actions have been permitted both in England and in this state to be brought in equity by an heir at law against a devisee, where the heir sought to set aside the will, and where there was an outstanding term granted by the testator in his life-time, by reason of the existence of which an action of ejectment could not be maintained by the heir. In such cases the heir has been permitted to come into a court of equity, and ask for an injunction against the devisee enjoining him from setting up, in an action of ejectment to be brought by the heir against him, the existence of the outstanding term as a defense to the action, and in such cases it has been held that the court was not bound to proceed only to the extent of granting the injunction, but that it might also grant an issue to be tried at law as to the validity of the will, or it might simply grant the injunction, and leave the heir at law to his action of ejectment. This doctrine is very fully stated in the English case above cited of Boyse v. Rossborough, in the report in Kay. It is also thus decided in the case of Brady v. McCosker, 1 N. Y. 214.

I have been unable to find any reported case in this state holding that the supreme court has any such inherent jurisdiction as is claimed by the learned counsel for the plaintiff.

The case of Van Alst v. Hunter, 5 Johns. Ch. 148, was the case of an action by the heirs at law against the defendants as devisees to set aside the will as made by an incompetent testator. The defendants had taken possession of the real estate under the will. Why an action of ejectment was not brought by the heirs at law is not stated in the case. Nor was the question of jurisdiction once raised, or the subject adverted to in any manner whatever. The chancellor had granted a feigned issue upon the question of the competency of the testator which had been once tried at law, and the verdict was in favor of the will, and the judge trying the case certified his satisfaction therewith. Counsel for the heirs at law moved for a new trial as matter of course, and contended that in such a case, where the result of the verdict was to disinherit the heir, that a new trial by the English rule was invariably granted. The only question decided by the chancellor was that there was no such inexorable rule for the granting of a new trial as matter of right; that it remained discretionary with the chancellor; and in that particular case he exercised it by refusing to grant a new trial.

Clarke v. Sawyer, 2 N. Y. 498, was a suit by the heirs at law to annul a will on the ground of imbecility and undue influence. The assistant vice-chancellor held the will to be good. The chancellor reversed that decision, and the reversal was affirmed in this court. The question of jurisdiction was raised for the first time in this court, and it was held to be raised too late; the court adding that it would not entertain jurisdiction to set aside a will of real estate on the ground of the testator's incompetency, where there was a perfect remedy at law, and where the objection was taken in due season. The report of the same case in 2 Barb. Ch. 411, shows that the only question raised or considered in that court by the chancellor was whether the decedent was of sound and disposing mind at the time of the execution of the will.

In Brady v. McCosker, supra, the plaintiff claimed as heir at law and in hostility to the will, and was out of possession, and charged that the will was procured by fraud. An obstacle existed to the maintenance of ejectment by the plaintiff, being an outstanding term in trust, and part of the estate being subject to an unexpired lease under which the lessee or his assignee was in possession. This outstanding legal term was held an impediment to the proper maintenance of the action at law on the part of the heir in the nature of ejectment, and consequently equity had jurisdiction.

In Bailey v. Briggs, 56 N. Y. 407, the question was not decided, and was not before the court.

These are all the cases cited by counsel upon the question as to the inherent jurisdiction of a court of equity in this state over the subject-matter of an action like this. We do not see that they support the contention that such a jurisdiction exists. On the contrary, th jurisdiction of courts of equity in considering doubtful or disputed clauses in a will has been held with entire uniformity by the courts of this state to result from its jurisdiction over trusts, and that exists only when the court is moved on behalf of an executor, trustee, or cestui que trust, to enforce a correct administration of the power conferred by the will. We think that the jurisdiction in cases where the question arises as to the competency of the testator to make a will is certainly not broader than in cases arising upon the construction of doubtful or disputed clauses in the will, and unless such trusts exist in the instrument propounded as a will the supreme court has no power to establish the will, (except in cases expressly provided by statute,) where the...