Morgan v. Sanborn

• Citation: 225 N.Y. 454,122 N.E. 696
• Parties: MORGAN et al. v. SANBORN.
• Decision Date: 07 February 1919
• Court: New York Court of Appeals

225 N.Y. 454

122 N.E. 696

MORGAN et al.

v.SANBORN.

Court of Appeals of New York.

Feb. 7, 1919.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Elenor L. Morgan and others against Elmer E. Sanborn, as executor, etc., and Emma L. Waller and others. From a judgment of the Appellate Division (173 App. Div. 946,158 N. Y. S. 1123), modifying and as modified affirming a judgment of the Special Term dismissing the complaint upon the merits, the plaintiffs and defendants, excepting said executor, appeal. Judgment of Appellate Division reversed, and new trial ordered.

Cardozo and Pound, JJ., dissenting.George H. Taylor and Frederick W. Clark, both of Mt. Vernon, for appellants.

Edward S. Clinch, of New York City, for respondent.

ANDREWS, J.

Josiah and Melissa Waller were husband and wife and childless, their nearest relatives being brothers and sisters and their children. On September 19, 1910, they each executed a will, giving all of their property to the other. The appellants claim that this was done under an agreement that the survivor should execute a will disposing of the entire property constituting both estates by distributing the same among the next of kin of the husband and wife, the distribution to be made in sums according to the judgment of the survivor. Mr. Waller died on February 12, 1911, and his estate-$88,000 as the appellants claim, $44,000 as the respondent concedes-went to the wife. On February 27, 1911, Mrs. Waller executed a will giving $55,000 to various of her husband's kin and $50,000 to various of her own kin, and reciting the agreement. This was substantially the total of the combined estates. On April 19, 1911, she made a second will, giving the entire estate to her own kin and revoking the first will. She died on January 1, 1914.

[1][2] The complaint in this action, which is brought by certain of Mr. Waller's next of kin, asks for the specific performance of the contract between Mr. and Mrs. Waller and the distribution of her estate as provided in the revoked will. Such an action may be maintained (Seaver v. Ransom, 224 N. Y. 233, 120 N. E. 639;Edson v. Parsons, 155 N. Y. 555, 571,50 N. E. 265), and the statute of frauds is not a bar.

The trial court found, among other things, that no such agreement, as claimed by the appellants was made by Mr. and Mrs. Waller, and that Mrs. Waller's signature to the revoked will was obtained by fraud, duress, and intimidation, and was not her free and unrestrained act. It, therefore, found as a conclusion of law that this revoked will was null and void, and that the complaint should be dismissed upon the merits, with costs. From the judgment entered on these findings an appeal was taken to the Appellate Division. The result was an order and judgment of affirmance which reversed the findings that no agreement was made between Mr. and Mrs. Waller, and that the signature to the revoked will was obtained by fraud and intimidation; reversed the conclusion of law that the revoked will was void; found as a fact that the agreement alleged by the appellants was made between Mr. and Mrs. Waller, but held that such agreement conferred no substantial right upon the next of kin of Mr. Waller, and ordered that the judgment be affirmed upon the sole ground that this agreement did not require the wife as the survivor to give to the next of kin of the husband any substantial amount, and that equity would not interfere to enforce a mere nominal right in their favor.

Thereupon an appeal was taken to this court from a part of the order of affirmance, and from so much of the judgment of affirmance as held that the plaintiffs had no substantial rights under the agreement and as affirmed the judgment appealed from upon the ground stated, ‘It being the intention of the above-named plaintiffs to bring up for review in the Court of Appeals so much of the said actual determination of the Appellate Division, Second Department herein, as adjudges that the agreement’ referred to ‘conferred upon the next of kin of Josiah A. Waller no substantial right; and also to bring up for review in the Court of Appeals so much of the said actual determination of the said Appellate Division as affirmed the judgment of July 1, 1915, herein, without costs, upon the sole ground that the said agreement between Josiah A. Waller and Melissa V. Waller, husband and wife * * * did not require her as the survivor to give to the next of kin of the husband any substantial amount, and that equity will not interfere to enforce such a nominal right on the part of the next of kin.’

[3][4][5] In actions, except where a new trial is ordered, no appeal as of right may be taken to this court except from a final judgment. Such an appeal may not be taken from the order of the Appellate Division directing such a judgment. Cardozo on the Jurisdiction of the Court of Appeals, § 85; Derleth v. De Graff, 104 N. Y. 661, 10 N. E. 351. This being so, so much of the appellants' notice of appeal as refers to the order of the Appellate Division is irregular. Upon an appeal from a judgment the appellant may in his notice state that he appeals from it, or from a specified part thereof. Code Civ. Proc. § 1300.

[6][7] What the appellants have sought by adopting the form they use is clear. The finding of fact against them in the trial court is reversed. Instead one is made in their favor. Therefore, if the Appellate Division is wrong in its legal conclusion, they wish this court to direct judgment for them. On the other hand, the respondent claims that only the grounds for affirmance-not the affirmance itself-is questioned. Therefore, whether these grounds were right or wrong, the original judgment stands, and we may not review it. This construction of the effect of the notice of appeal is too narrow. Taken as a whole, it informs the court that it is from the judgment of affirmance and is based upon the ground that this judgment is not supported by the findings as made. It this is true it must be reversed. And upon the reversal we may either award a new trial or grant to either party such judgment as he may be entitled to. Code Civ. Proc. § 1337.

[8] After finding the agreement under which the mutual wills were made, the Appellate Division has interpreted it as meaning that it would be satisfied in case the survivor gave to the next of kin of the husband, or to one of them, some sum, however small, and that, therefore, there was conferred upon them no substantial right. Consequently, equity would not interfere to enforce on their behalf a mere nominal claim.

There are three possible constructions which might be given to this agreement: (1) That adopted by the Appellate Division. It involves the idea that under the agreement two classes of beneficiaries are created-the husband's next of kin and the wife's. (2) That, there being two classes, each class was entitled to one-half of the joint estate, the survivor to distribute such half among the members of each class according to his or her judgment. (3) That but one class was created, all of the next of kin of either husband or wife, to any one of whom the whole joint estate might be given.

[9] If the last is the true construction, the complaint should be dismissed. The distribution ‘in sums according to the judgment of the survivor,’ does not fairly imply that each of the next of kin must receive something even if an unsubstantial amount. Clearly such was not the intent of the parties to this agreement. That such is not thought to be the intent, under somewhat similar circumstances, is shown by the adoption by the Legislature of section 158 of the Real Property Law. Consol. Laws, c. 50. ‘Where a disposition under a power is directed to be made to, among, or between, two or more persons, * * * when the terms of the power import that the estate or fund is to be distributed among the persons so designated, in such manner or proportions as the grantee of the power thinks proper, the grantee may allot the whole to...