Garlock v. Vandevort
| Decision Date | 06 October 1891 |
| Citation | 28 N.E. 599,128 N.Y. 374 |
| Parties | GARLOCK v. VANDEVORT et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, general term, fifth department.
Action by Peter Garlock, as executor of the estate of Thomas Vandevort, deceased, against Ella Vandevort and Gilbert Vandevort, to obtain a construction of the will of the deceased. The action was dismissed in the supreme court, and costs were charged against the plaintiff personally. Plaintiff appeals. Affirmed. For former reports, see 12 N. Y. Supp. 955; 5 N. Y. Supp. 737.
E. K. Burnham, for appellant.
T. H. Bennett, for respondents.
The plaintiff sets forth in his complaint two grounds for bringing this action to obtain a construction of the will of Thomas Vandevort, deceased. The one sought to raise a question as to the residence of a grandchild, as bearing upon her capacity to be a legatee of certain property, and the other related to a clause of the codicil nullifying bequests and devises, in the event of any of the testator's children presenting to his executors claims against the estate other than for the bequest or devise given in the will; practically speaking, cutting off the child in such an event. At the time this action was brought, there was pending in the surrogate's court, and undetermined, a proceeding instituted by this plaintiff's co-executor, for a judicial settlement of his accounts, into which were brought all persons in interest, and who are now made the parties to this action. Objections were there filed by this plaintiff and other parties to the executor's accounts, which raised, inter alia, the precise question which this complaint raises concerning the effect of the clause in the codicil above mentioned.
The first question in the complaint arises out of that portion of testator's will in which he gave to his ‘grandchildren living in Michigan at his decease all his real and personal estate * * * in Michigan.’ The complaint questions the right of one of the grandchildren to be a legatee as to such portion of the estate; but the point was not argued in the appellant's brief, and seems to have been abandoned. It could not well be pressed as constituting any ground for invoking the equity jurisdiction of the supreme court. Whether the particular grandchild was a resident of Michigan or not was a question of fact, and one which the surrogate could perfectly well dispose of.
The issue mainly contested in the surrogate's court, and which is relied upon now, was as to the right of the defendant Gilbert Vandevort, a child who prosecuted a claim against the estate, or of his descendants, to receive any share under the will. The claim had been disputed, but, being allowed, had been paid by the executor. This fact was insisted upon before the surrogate as avoiding the child's interest under the will, by force of the provision of the clause of the codicil referred to. The learned judge at special term decided that the action was not brought in good faith, and that the questions involved were within the jurisdiction of the surrogate to determine, and he therefore dismissed the complaint, charging the plaintiff personally with the costs. This disposition of the case I think we must all agree to have been a correct and just one. There is no question but that the supreme court could entertain jurisdiction of an action brought by an executor to determine the force and validity of such a provision in a will, but it is not an exclusive jurisdiction. The surrogate had the power, as well, to construe the will in that respect. Though a judicial officer, with limited and prescribed...
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Jacqueline F., Matter of
...jurisdiction in many respects, and the seemly administration of the law demands that their orders do not conflict (Garlock v. Vandevort, 128 N.Y. 374, 28 N.E. 599; Schuehle v. Reiman, 86 N.Y. 270; Sloan v. Beard, 125 App.Div. 625, 110 N.Y.S. 1; Platt v. N. Y. & Sea Beach Ry. Co., 170 N.Y. 4......
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In re Elmira Steel Co.
... ... of the subject-matter and of the persons retains, and should ... continue to exercise, that jurisdiction. Garlock v ... Vandevort, 128 N.Y. 374, 379, 28 N.E. 599 ... Creditors ... filing a petition acquire thereby an equitable lien, as was ... ...
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Ex parte Lee
...jurisdiction in many respects, and the seemly administration of the law demands that their orders do not conflict. Garlock v. Vandevort, 128 N. Y. 374, 28 N. E. 599;Schuehle v. Reiman, 86 N. Y. 270;Sloan v. Beard, 125 App. Div. 625,110 N. Y. Supp. 1;Platt v. N. Y. & Sea Beach Ry. Co., 170 N......
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Colson v. Pelgram
...with adequate power to administer full justice should continue to exercise it. Schuehle v. Reiman, 86 N. Y. 270;Garlock v. Vandevort, 128 N. Y. 374, 28 N. E. 599. We know of no principle which requires a different rule where the litigation is commenced by petition rather than by a summons. ......