Bryant v. Thompson

• Decision Date: 13 October 1891
• Parties: BRYANT et al. v. THOMPSON et al.
• Court: New York Court of Appeals Court of Appeals

128 N.Y. 426

28 N.E. 522

BRYANT et al.

v.THOMPSON et al.

Court of Appeals of New York.

Oct. 13, 1891.

Appeal from supreme court, general term, fifth department.

Action by Warren Bryant and others against Harriet F. Tracy Thompson and others. From the judgment, plaintiffs appeal. Appeal dismissed.

RUGER, C. J., and ANDREWS and GRAY, JJ., dissenting.

John G. Milburn, for appellants.

John E. Parsons and Charles Robinson Smith for respondents.

O'BRIEN, J.

The plaintiffs, as executors and trustees of the will of Francis W. Tracy, who died April 15, 1886, brought this action in order to procure a judicial construction of its provisions. The will and codicils dispose of a large estate, consisting of both real and personal property Numerous large bequests were made to collateral relatives, and also to various public and private charitable institutions. The residuary estate was left to the widow. The only clause of the will with which we are concerned, in the decision of this appeal, is the one in which provision was made for the defendant Harriet F. Tracy, who is the only child and heir at law of the testator. At the time of his death she was an infant, nearly 19 years of age, and since the commencement of this action, and about the month of April, 1890, she married one George Thompson. She is the daughter of a former wife, who obtained a divorce from the testator many years before his death. When very young, she and her mother separated from the testator, and took up their residence in the city of New York, while the deceased continued to reside in Buffalo, where he died. The relations between the deceased and his daughter and her maternal relatives had for many years been hostile. Her mother's maiden name was Robinson, and the child took that name, and is so designated in some parts of the case. The testator, by a codicil to his will bearing date August 19, 1879, provided a trust fund of $100,000, the income of which was to be paid to this daughter during her life, the principal to be divided among her issue at her death. The form of the bequest was to the executors of his will in trust. The same codicil contained, however, the following provision: ‘In case any beneficiary named in my said last will and testament, whether a devisee, legatee, or cestui que trust therein named, shall, in person or by another, contest the probate of my said last will and testament or any codicil thereto, or shall institute any proceedings of any kind with a view to avoid or annul my said last will and testament or any codicil thereto, or any provision in my said last will and testament or in any such codicil contained, then and in either case I do hereby revoke all provisions in my said last will and testament or in any codicil thereto contained in favor of the person or corporation contesting or seeking to avoid such last will and testament or codicil or provision. And if such contestant shall be my daughter, then I give, devise, and bequeath to my wife all the property which in and by such last will and testament and the codicils thereto is or shall be given to my executors in trust for my said daughter's benefit. If my wife shall be such contestant, then I give, devise, and bequeath to my executrix and executors all the property which is by my said last will and testament or any codicil thereto given to my wife, in trust for my daughter, upon the same trusts in every particular as are specified in the second article of this codicil.’ It seems that the testator contracted a second marriage, and the wife referred to in the provisions of the will, and who took the residuary estate, and with whom he lived up to the time of his death, is the wife of this marriage.

A few days after the death of the testator, his will, with the codicils, were presented to the surrogate of Erie county for probate, by the plaintiffs, and a citation was issued and served upon the daughter, the defendant in this action. Upon the return-day of the citation the surrogate, of his own motion, appointed a special guardian for the daughter for the sole purpose of appearing and protecting her interests in the proceedings to prove the will. Subsequently, and after consultation with the defendant and her relatives in New York, and with counsel there, acting for them, the guardian interposed an answer before the surrogate, taking issue in the usual form with the allegations of the petition. The special guardian also retained counsel, and under the direction of the surrogate the proponents of the will were required to produce many witnesses before him for examination, and the trial continued during a number of days. It was contended in behalf of the special guardian that the testator did not possess testamentary capacity; and various witnesses, including servants of the deceased and also experts, were called to sustain that contention. The guardian, through his counsel, requested the surrogate to refuse probate to the will. In the month of November, 1886, the surrogate entered a decree admitting the will to probate, which, among other things, contained this clause: ‘Pursuant to section 2623 of the Code of Civil Procedure, it is hereby stated that the probate of said will was contested.’ The daughter herself was present at the hearing, and was called and heard as a witness on behalf of the special guardian. After the entry of the decree admitting the will to probate, the widow executed, acknowledged, and filed with the surrogate a paper, under seal, which recited that she was the residuary legatee and devisee of her late husband's will, which had been admitted to probate. The provision of the decree stating that it was contested, and of the will and codicil that the legacy, in case of such contest, should be deemed revoked, were referred to. It then recited that she was desirous that all the provisions of her husband's will, respecting his daughter, should be observed, providing his reputation and capacity be not further questioned. It then stipulated that the executors (of whom she was one) shall not claim in any way that the right of the daughter to the provisions of the will for her benefit had been forfeited; that no effect should be given to the clause revoking the legacy in case of a contest by the legatee, but that the legacy should be deemed legal and valid, and the trust in favor of the daughter executed. The consideration for this agreement on the part of the widow was stated to be the omission of the daughter to appeal from the decree of the surrogate, and it was in terms conditioned that no such appeal should be taken, and that no action or proceeding of any nature should be brought by or in behalf of the daughter, or by any person claiming through or under her, to set aside the probate, or question the validity of the will or the testamentary capacity of her husband; and in case such appeal, action, or proceeding should be brought or instituted, then the stipulation and agreement should be void and of no effect. The special guardian, however, appealed from the decree of the surrogate to the general term, where the decree was affirmed.

Two of the executors then brought this action to procure the judgment of the court as to the disposition of the $100,000 which the daughter was to take by the provisions of the will. The widow, declining to become a party plaintiff, was made a defendant, both...