Croker v. Williamson

• Decision Date: 03 June 1913
• Citation: 102 N.E. 588,208 N.Y. 480
• Parties: CROKER v. WILLIAMSON et al.
• Court: New York Court of Appeals Court of Appeals

208 N.Y. 480

102 N.E. 588

CROKER

v.WILLIAMSON et al.

Court of Appeals of New York.

June 3, 1913.

Appeal from Supreme Court, Appellate Division, First Department.

Action by George F. Croker against Smith Williamson, as sole executor of Francis C. Taylor, and others. From an order of the Appellate Division (154 App. Div. 930,139 N. Y. Supp. 842) affirming an order denying a motion for judgment on the pleadings, defendants Harry and Thomas Taylor appeal. Affirmed.

See, also, 140 N. Y. Supp. 1115.

E. D. Miner, of New York City, for appellants.

David M. Neuberger, of New York City, for respondent.

HISCOCK, J.

The question involved concerns the application of the statute of limitations to an action brought, as this one was, under section 2653a of the Code of Civil Procedure to determine generally the validity of a will and of the probate thereof. That section provides that, with certain exceptions not important here, an action brought under its provisions ‘shall be commenced within two years after the will or codicil has been admitted to probate.’ The appellants, who are legatees under the will here involved, were nonresidents of the state, and service of the summons was not made on them within the period specified. The service was, however, made within such period upon another legatee and upon the executor of the will, who were necessary parties defendant to the action. I shall assume that the period for commencement of this action prescribed by section 2653a was not extended by the nonresidence of the appellants, as might have happened under other statutory provisions for the limitation of actions, and that therefore no requisite commencement of the action by service of the summons upon them was made. Section 398 of the Code, however, provides: ‘An action is commenced against a defendant, within the meaning of any provision of this act, which limits the time for commencing an action, when the summons is served on him; or on a codefendant who is a joint contractor, or otherwise united in interest with him.’ The two questions which arise under this section are: First, whether it applies to the special statute of limitations now being discussed; and, second, if it does, whether various legatees or legatees and executors under and of a will which is being attacked are ‘united in interest’ within the last clause of said section.

[1] The answer seems clear that said section is applicable to the statute of limitations governing this case. Such statutory provision simply limits the time within which such an action must be commenced. It does not attempt to place any restriction upon the methods by which the action may be begun, and therefore there is no reason for holding that a plaintiff in such an action should not be entitled to the benefits of a general provision telling him how he may commence his action. In the next place section 398, by its express terms, covers such a case as this, because it applies to the commencement of any action covered by ‘any provision of this act,’ and of which act both sections 2653a and 398 are parts.

While the second question may afford more opportunity for debate than the one just answered, the answer thereto nevertheless seems to be reasonably certain. Section 2653a requires that ‘all the devisees, legatees and heirs of the testator and other interested persons, including the executor or administrator, must be parties to the action.’ The issue to be determined is ‘whether the writing produced is or is not the last will and codicil of the testator, or either.’ The verdict is made conclusive as to real or personal property unless a new trial be granted. If the judgment is to the effect that the writing produced is the last will and codicil, it is not only conclusive upon the parties to the action, but must expressly enjoin them and those claiming under them from thereafter maintaining any action or defense based upon a claim that such...