Corley v. Mcelmeel

• Decision Date: 14 April 1896
• Citation: 149 N.Y. 228,43 N.E. 628
• Parties: CORLEY v. McELMEEL et al.
• Court: New York Court of Appeals Court of Appeals

149 N.Y. 228

43 N.E. 628

CORLEY

v.McELMEEL et al.

Court of Appeals of New York.

April 14, 1896.

Appeal from supreme court, general term, Second department.

Action by Rose Corley, as one of the heirs at law of Patrick Trenor, deceased, against James McElmeel and others, for partition. A judgment in favor of defendant Annie E. Stover was affirmed by the general term (33 N. Y. Supp. 862), and plaintiff and the defendants other than said Stover appeal. Affirmed.

Charles E. Hughes and Robert Sewell, for appellants.

Charles J. Patterson, for respondents.

GRAY, J.

In order to have a clearer understanding of the appellants' case, it is necessary to state a few facts connected with the litigation. The action was brought by plaintiff, as one of the heirs at law of Patrick Trenor, deceased, for the partition of certain real estate of which he died seised; and she joined as parties defendant the other heirs, the executors of his will, and Mrs. Stover, to whom he had devised his real estate. The complaint alleged the presentation of the will to the surrogate's court of the city and county of New York for probate, and a decree thereof adjudging the will to be void, for having been obtained by fraud. The answer of the respondent, Stover, asserted the validity of the will, and claimed the property devised to her thereby. When the issues came on for trial in the supreme court, before Mr. Justice Kellogg and a jury, the surrogate's decree above mentioned being offered in evidence by plaintiff, and being objected to, a stipulation of the parties was entered into, whereby all the issues, except that touching the validity of the will, were to be tried by the court without a jury, and, if it should thereupon be decided that the validity of the will had not been determined conclusively, that that issue should be tried at some subsequent term of the court by a jury. The jury then being discharged, the surrogate's decree was received in evidence, and decision was reserved as to its effect. Thereafter Mr. Justice Kellogg filed his decision, which found the facts as to the relationship of the parties, and as to the proceedings for and upon the probate of the will; also, that Mrs. Stover, ‘claiming to be a legatee under the said alleged will and testament, duly appeared, and was a party to the proceeding,’ etc.; and that the decree of the surrogate had adjudged the will to be void. As conclusions of law, he held that the decree was not conclusive as to the parties claiming under the will; that the will might be proved in the action by any party claiming any interest in the lands and that under the stipulation the issue touching the validity of the will must be tried by a jury. Thereafter that trial came on before Mr. Justice Gaynor and a jury, who rendered their verdict in favor of Mrs. Stover upon the issues, and upon the receipt of that verdict the court rendered a decision that she was entitled to a judgment dismissing the complaint upon the merits, adjudging the validity of the will, and that she became seised, in fee-simple absolute, of the real estate described in the complaint. Upon that trial plaintiff's counsel, before opening the case to the jury, offered the decree of the surrogate in evidence ‘on the ground that it was res adjudicata,’ and argument pro and con was heard upon this proposition. The court excluded it; and again, when, after opening the case, the offer of the decree was repeated, its admissibility was placed upon the ground stated in the argument, namely, that it was res adjudicata, and the ‘final determination of the rights of the parties.’

The general term affirmed the judgment, and upon this appeal the appellants have insisted, in substance, that as the surrogate's court had jurisdiction to determine all questions relating to the factum of the will, and as Mrs. Stover had voluntarily appeared in that proceeding, where the merits were fully litigated, she had waived her right to a trial by jury, and that, as between the parties, the surrogate's decree was conclusive proof of the invalidity of the will. The appellants do claim, also, that the decree was prima facie evidence of the invalidity of the will, and should have been received upon the trial as evidence of that character, in aid of the plaintiff's case. It is difficult to see how this court, in its review of the determination made below of the issues between the parties, can disregard the record, and look beyond its statement of the proceedings upon the trial, without assuming a scope of jurisdiction not intended nor understood to be exercised by it. We cannot say, notwithstanding the insistence of counsel, in the absence of a statement to that effect, that the surrogate's decree was offered as prima facie evidence, if not admissible as evidence of a prior adjudication conclusive upon the litigants now. Indeed, it seems strange, if the offer and argument upon this later trial related to the admissibility of the decree as prima facie evidence, that it should not so appear upon the record. The appellants made up the record on appeal, and must have had in mind, as they had before them, the opinion of Mr. Justice Kellogg upon the preceding trial, wherein he suggested-but without undertaking to decide it-the question of the decree being admissible in that character. This fact, and the preciseness of the statement in the appeal book, forbid us from regarding the record otherwise than as it is made to appear. The introduction of the decree might or might not have had an effect upon the minds of the jurors, but it is too late to argue the question now.

The question, then, is whether the decree of the surrogate's court concluded the respondent, Mrs. Stover. She was not cited upon the proceeding there, and she was not a necessary party to the probate of the will. The finding of the court as to her appearance is that she did appear, claiming to be a legatee under the will, and continued to be a party to the proceeding. While the term ‘legatee’ is somewhat indiscriminately used to describe one who takes personalty or realty under the provisions of a will, we cannot say that Mrs. Stover was not, in strict legal parlance, interested as a legatee, as well as a devisee; and, that being the case, her appearance in the contest before the surrogate may have been to aid the proponents of the will in establishing its conclusiveness as a will disposing of the testator's personalty, of which, as it was also found, he died possessed to an amount sufficient to pay his debts and his legacies. If we take a broader view of Mrs. Stover's appearance in the proceeding, we are not able to say, however unnecessary and however general it was, that it was at the risk of her being concluded by the result. In so far as the realty was concerned, and as to the personalty bequeathed, her appearance had no effect upon the decree to make it any the more conclusive. The decree of the surrogate admitting to probate a will proposedis conclusive as an adjudication, with respect to its competency to distribute the testator's personal property; and this conclusiveness extends to all parties duly cited, or who appear, until reversed on appeal, or revoked by the surrogate. Code § 2626. Its rejection, though the expressly provided for,...