Davis v. Cornue

• Decision Date: 15 December 1896
• Parties: DAVIS v. CORNUE et al.
• Court: New York Court of Appeals Court of Appeals

151 N.Y. 172

45 N.E. 449

DAVIS

v.CORNUE et al.

Court of Appeals of New York.

Dec. 15, 1896.

Appeal from supreme court, appellate division, First department.

Action by Erwin Davis against Ellen S. Cornue and others for an injunction. From a judgment of the appellate division (37 N. Y. Supp. 788) reversing an interlocutory judgment overruling a demurrer to an amended complaint, plaintiff appeals. Reversed.

Logan, Demond & Harby, for appellant.

Stern & Rushmore, for respondents.

MARTIN, J.

In March, 1890, Andrew J. Davis died in the state of Montana, possessed of a large amount of real and personal property in that state, in the state of New York, and elsewhere within the United States. He left, him surviving, the plaintiff, who was a brother, and the defendants, who, with the exception of Anson Malby, were his brothers and sisters, or the surviving children of deceased brothers and sisters. The plaintiff and defendants Ellen S. Cornue, Joshua G. Cornue, and Harriet R. Sheffield are residents of this state. Other of the defendants reside elsewhere. At the time of his death, Andrew J. Davis was supposed to have been unmarried, and to have died intestate; but, soon after, one Thomas J. Davis appeared, and claimed to be his son and sole heir. In view of this and other apprehended claims of a like nature, two of the brothers and three of the sisters of the decedent entered into an agreement with the plaintiff whereby the latter agreed to institute, prosecute, and defendthe necessary actions to establish the rights of the parties against Thomas J. Davis and all others making like claims, and to pay all the necessary expenses of such litigation, not exceeding $200,000. In consideration of such agreement by the plaintiff, it was by the other parties agreed that the plaintiff should receive one-half of the amount that each party to the contract was or should become entitled to recover from the estate of Andrew J. Davis. The plaintiff was to receive such share directly from the estate, or its legal representative. Shortly after this agreement was made, an alleged will of Andrew J. Davis was found, by which John A. Davis, a brother of the testator and one of the parties to the agreement, was made sole residuary legatee of the testator, subject to three legacies, which need not be considered. Upon the discovery of this will, John A. Davis executed a new agreement to the plaintiff, which recited the former contract, and provided that it should be applicable to the estate coming to him under the will of Andrew J. Davis, so far as the plaintiff was concerned. Subsequently John A. Davis offered the will for probate in the district court of the Second judicial district in the county of Silver Bow, in the state of Montana. The probate of this will was contested by four of the defendants, who were not parties to the plaintiff's agreement. While the contest was pending, and in January, 1893, John A. Davis died intestate, leaving a widow and several children. His son John E. Davis was appointed administrator of his estate, and substituted as the proponent of the will of Andrew J. Davis. At this stage of the proceedings, and while the contest was still pending, the defendants, with full knowledge of the two agreements mentioned, entered into a fraudulent and corrupt agreement or conspiracy to divide the assets and proceeds of the estate of Andrew J. Davis among themselves, and to deprive the plaintiff and the defendants Calvin P. Davis, Diana Davis, Harriet Wood, and Elizabeth S. Bowdoin of their rightful shares and interests therein. In pursuance of such agreement or conspiracy, it was stipulated by and between the defendants that the defendants Henry A. Root, Sarah M. Cumming, Harriet R. Sheffield, and Henry A. Davis should withdraw their objections to the probate of the will, discontinue their contest, and allow the same to be admitted to probate; thereby cutting off the rights of the plaintiff and the defendant Calvin P. Davis, Diana Davis, Harriet Wood, and Elizabeth S. Bowdoin, as next of kin and heirs at law of Andrew J. Davis. It was also stipulated that the estate should be divided among the defendants Ellen Cornue, Joshua G. Cornue, Harriet R. Sheffield, Henry A. Davis, Andrew J. Davis, Jr., John E. Davis, Edward A. Davis, George W. Davis, Charles G. Davis, Maurice A. Davis, Thea Jane Davis, Sarah M. Cumming, Mary Louise Dunbar, Elizabeth S. Ladd, and Charles H. Ladd, in proportions that need not be stated. In pursuance of such fraudulent stipulation, the will was admitted to probate, and a decree of distribution entered in accordance with its terms, dividing the estate among persons not mentioned in the will, and excluding the plaintiff and other of the defendants from any share or interest therein, either under the agreement, or as heirs or next of kin of Andrew J. Davis. Neither the plaintiff, nor any of the defendants excluded in the division of the estate of Andrew J. Davis, was a party to the proceeding in which such decree was made. The court making the decree had no jurisdiction to do more than to reject or admit the will to probate, and administer the estate according to its terms. All further proceedings were null and void. The defendants have little, if any, property, outside of their interest in that estate, and, except for such interest, they have no financial responsibility. A portion of them reside in various states other than the state of New York. If the estate is divided among them according to such decree, the interests and shares of the plaintiff and certain of the defendants will become dissipated and lost, and it will be impossible for them to recover their rights therein, secure their share thereof, or to save themselves from being effectually defrauded and deprived of their shares therein. A multiplicity of actions will be required to recover such interest, and, even if such actions are brought, they will be wholly insufficient and inadequate to accomplish that purpose, and therefore great and irreparable injury to them would be the result. The foregoing is a brief statement of the substance of the complaint, and of the facts admitted by the defendants' demurrer. The relief sought by this action is that the defendants who, under the decree mentioned, were to receive or distribute this property, be enjoined from distributing it, or taking or receiving any part thereof, without recognizing or providing for the rights of the plaintiff and the excluded defendants, until those rights shall be determined.

The questions of law which are certified to this court for determination are (1) whether the supreme court had jurisdiction of this action, and (2) whether the complaint states facts sufficient to constitute a cause of action. Thus, if the court might have declined to entertain jurisdiction, or might, in its discretion, have refused to restrain the defendants served from accepting and disposing of any portion of the estate, still, as no such question has been certified to this court, it is not before us for determination, as this court has power only to answer the questions thus presented. Code, § 190. In determining these questions, all the allegations stated in the complaint, as well as all that can be implied from them by reasonable and fair intendment, must be regarded as admitted by the defendants' demurrer. When this rule is given its proper effect, it becomes obvious that the complaint in this action is not subject to the objections urged against its sufficiency. That the court had jurisdiction of the persons of the demurring defendants and of the plaintiff cannot be denied. It in no way appears that the other defendants have not been, or may not be, properly served with process in this action, and the court thus obtain jurisdiction of all the parties. Moreover, a portion of the property belonging to the estate of Andrew J. Davis is within the jurisdiction of the courts of this state. It is a familiar rule that a court of equity may render a decree in regard to property, even when in another state or country, and, in effect, stay the execution of a foreign judgment, or a judgment recovered in a federal court, when the parties are within the jurisdiction of the court. Pomeroy, in his work on Equity Jurisprudence (volume 3, § 1318), says: ‘The jurisdiction to grant such remedies is well settled. Where the subject-matter is situated within another country or state, but the parties are within the jurisdiction of the court, any suit may be maintained and remedy granted which directly affect and operate upon the person of the defendant, and not upon the subject-matter, although the subject-matter is referred to in the decree, and the defendant is ordered to do or refrain from certain acts towards it, and it is thus ultimately, but indirectly, affected by the relief granted.’ He mentions, as examples of this rule, suits for specific performance, the enforcement of express and implied trusts, relief on the ground of fraud, final accounting, settlement of partnerships, and the like. The same principle is recognized by this court in Dobson v. Pearce, 12 N. Y. 156, and Stevens v. Bank, 144 N. Y. 50, 39 N. E. 68. In the former case the plaintiff in a judgment recoveredin this state brought an action upon it in the state of Connecticut, and the defendant in the judgment filed a bill in equity against the plaintiff in the courts of that state, alleging that the judgment was procured by fraud, and praying relief against it. The plaintiff in the judgment appeared and litigated the equity suit, and upon the trial the court decided that the judgment was obtained by fraud, and enjoined the plaintiff from prosecuting the action upon it. The original judgment was subsequently assigned, and the assignee brought suit thereon in this state, where it was held that the judgment of the Connecticut court was conclusive evidence that the original judgment rendered in this state was obtained by fraud....