In re Winburn's Will
| Decision Date | 03 March 1936 |
| Citation | 270 N.Y. 196,200 N.E. 784 |
| Parties | In re WINBURN'S WILL. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Proceeding in the matter of the estate of Michael Winburn, deceased. An order of the Appellate Division (240 App.Div. 879, 267 N.Y.S. 968), affirming a surrogate's decree construing deceased's will, was reversed with directions by the Court of Appeals (265 N.Y. 366, 193 N.E. 177), and the executors and trustees and others filed motions to amend the remittitur.
Motions denied.
In this proceeding we reversed (265 N.Y. 366, 193 N.E. 177) an order of the Appellate Division affirming a decree of one of the surrogates of New York county construing the will of Michael Winburn, and held that as to one-half of the residuary, except two legacies, the testator died intestate. Our remittitur directed the surrogate to proceed in accordance with the opinion of this court, which, by necessary implication, held that the part of the estate in respect to which the testator died intestate should be distributed in accordance with the statute.
Some of the parties who were unsuccessful at the Appellate Division appealed to this court. Others of that group refrained from taking an appeal. The executors and trustees who had been successful in the Surrogate's Court and at the Appellate Division and some of the other parties in like position move to amend the remittitur by modifying the decree so as to award distributive shares only to those parties who appealed to this court and by affirming as to all other distributees who did not appeal. They rely principally upon St. John v. Andrews Institute for Girls, 192 N.Y. 382, 85 N.E. 143, and Matter of Horner's Will, 237 N.Y. 489, 143 N.E. 655.
In the prevailing opinion in the St. John Case, 192 N.Y. 382, at page 389,85 N.E. 143, 145, occurs the statement: ‘The great stumbling block in this case seems to be the apparent, if not real, incongruity of the result arrived at; that is to say, that a distribution will be made in favor of four of a certain class of defendants,which is denied to two others of the class, whose rights are exactly the same.’ In Croker v. Williamson, 208 N.Y. 480, 484,102 N. E. 588, 589, this court stated this rule: ‘It is clear both upon reason and authority that no such anomalous result could be tolerated as that of judgment declaring a will invalid on general grounds as to part of the legatees and valid as to others. [Citing authorities.] Thus it appears that in the face of an action involving the general validity of a will and of the probate thereof, the interests of legatees are so tied together that they cannot be separated and that a judgment rejecting or upholding the will as to one legatee will similarly affect the others. Their interests under the will must stand or fall together, and it would seem to be pretty clear that they are, therefore, ‘united.” The same thought had previously been expressed in Altman v. Hofeller, 152 N.Y. 498, 506,46 N.E. 961, 964, wherein it is written: ‘Our attention, however, has been called to no authority which sustains the doctrine that where there is error which requires a reversal, the judgment can be properly reversed and a new trial granted as to some of the defendants and affirmed as to others, unless in a case where their interests and the issues between them are so far separate that upon a new trial the issues between the plaintiff and the defendants as to which it is affirmed will not be involved or determined; so that there cannot be two different and inconsistent judgments upon the same issue in the action.’ Among the authorities cited in the prevailing opinion in the St. John Case is this quotation from Freeman on Judgments (Vol. 2, § 481): ‘If a defendant does not appeal, and is not made a party to the appeal by the service on him of notice thereof, an appeal by his co-defendant, followed by a reversal of the judgment, cannot authorize the retrial of the cause as against the non-appealing defendant, and the new trial must be confined to the issues between the parties to the appeal.’ 192 N.Y. 382, at page 386,85 N.E. 143, 144. That action arose in the Supreme Court, and Matter of Horner's Will was decided upon the authority of that d...
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