Opinion
April 18, 1952.
Appeal from the Surrogate's Court, Schoharie County, Johnson, S., Order in accordance with opinion.
Alford Lynes, Middleburg, for petitioner, Ella Zeh. David B. Alford, Middleburg, of counsel; T. Paul Kane, Cobleskill, on the brief.
Bliss Bouck, Schoharie, for respondent Mary Zeh VanVolkenburgh. Robert H. Ecker, Schoharie, of counsel.
Kniffen Kniskern, Cobleskill, for respondents Edith Zeh and Gregory Zeh. Milo R. Kniffen, Cobleskill, of counsel.
J. Wesley Vibbard, Schoharie, special guardian for unknown heirs.
John B. Bingham, Middleburg, for respondent tenant, John Durie.
George Zeh died on the 28th day of July, 1916, leaving a last will and testament which was duly admitted to probate in this Court, and a certified copy thereof recorded in the Schoharie County Clerk's Office. He was survived by his widow, Ella Zeh, the executrix named in his said last will and testament, who is still living and who is the petitioner herein. He was also survived by a daughter, Mary Hilda Zeh, who died January 1, 1919, intestate, unmarried, and without issue, and by a son George Zeh, who died January 5, 1919, intestate, unmarried, without issue. The widow, the petitioner herein, has applied for leave to sell the real estate owned by the decedent in his lifetime, and in the same proceeding, seeks a determination that she is entitled to such real estate under the provisions of the residuary clause of the decedent's last will and testament which is hereafter more fully set forth.
The respondents, Mary Zeh VanVolkenburgh, Edith Zeh, and Gregory Zeh, collateral relatives of the decedent, dispute the petitioner's contention and assert that they, as the only heirs at law, next of kin, or distributees of the said deceased now living, are the owners thereof A Special Guardian has been appointed for unknown heirs and has duly appeared in and is a party to this proceeding.
The real estate owned by the decedent in his lifetime, the ownership of which is in question here, has, by stipulation, been sold and converted into cash, and it is with the proceeds of such sale that we are concerned. There is no substantial dispute as to the facts and the proceedings heretofore had and taken in this Court, together with all of the papers filed in the Surrogate's Office in connection with the estate of the said George Zeh and all proceedings thereon, have been made a part of the record in this proceeding. The portions of the decedent's will under consideration here are the paragraphs thereof designated "Third" and "Fourth" which provide as follows:
"Third — All the rest, residue and remainder of my estate, both real and personal, of name or nature whatsoever and wheresoever situate, I give the use, occupancy and control to my wife Ella Zeh for and during' her lifetime, charging upon my said estate the support and maintenance, care and medical attendance, and proper burial and the erection of a tombstone at her grave of Elizabeth Young, the woman who has lived. with us for many years."
"Fourth — At the death of my said wife, I direct that the balance of my estate be equally divided between my children that may survive her."
The questions here presented therefore are:
1. As to the vesting- of the title to the decedent's real estate, whether contingent, or absolute
2. Whether the questions here presented are "res judicata".
3. Whether the petitioner is estopped from asserting her claim to said real estate by any position or action previously taken by her.
As to "the vesting of the title, the patties in their briefs appear to arrive ultimately at the same result, placing various interpretations upon the cases cited, and attempting to distinguish. Section 40 of the Real Property Law provides: "A future estate is either vested or contingent. It is vested, when there is a person in being, who would have an immediate right to the possession of the property, on the determination of all the intermediate or precedent estates. It is contingent while the person to whom or the event on which it is limited to take effect remains uncertain", and so provided at the time of the death of the testator, and ever since. As has been noted, two children of the testator survived him. Therefore there were two persons in being who would have immediate right to the possession of the property on the determination of the intermediate or precedent estates (in this instance, the life estate of the widow). There was no uncertainty as to the persons to whom, or the event on which, it was limited to take effect. The event upon which the estate was limited to take effect was the death of the widow, the- life tenant.
As has been noted, the two children of the testator who were living at the time of his death predeceased the life tenant, intestate, and without issue, and no children were born subsequent to the death of the testator. The Court must hold therefore, that upon the death of the testator, under the terms of his will, the title vested in Mary Hilda Zeh, and George Zeh, the children of the testator, subject (a) to the provisions of paragraph "Third" of the will (all of which appeared to have been carried out); (b) to the birth of any children subsequent to the death of the testator (which eventuality did not occur, and cannot now occur); (c) to the life estate of the widow; and (d) to being divested as to each child in the event of his failure to survive the life tenant.
Under the will therefore, the title was vested, subject to the above conditions in Mary Hilda Zeh and George Zeh, not as heirs at law, next of kin, or distributes of the deceased, but as a class, who might well have been absolute strangers. Upon the death of Mary Hilda Zeh, the future interest was divested as to her, and the entire future interest vested, "very briefly, in George Zeh, Jr., not as an heir at law, next of kin, or distributee of his sister, but as the survivor of a class. Upon the death of George Zeh, Jr., the entire future interest was absolutely divested.
it is urged by the respondents that upon the occurrence of this event, the title, subject to the life estate, revested in the then heirs at law, next of kin, and distributees of the decedent, who were the respondents here, or their privies. With this view the Court cannot concur. Since upon the death of George Zeh the son, there were no persons or parties to whom title could pass under the will, intestacy then existed as to the remainder interests. "It is a settled principle of law that the legal rights of the- heir or distributee to the property of deceased persons cannot be defeated except by a valid devise of such property to other persons'" Pomroy v. Hincks, 18O N.Y. 73, 72 N.E. 628, 629. The children were the natural heirs of George Zeh.
In Doane v. Mercantile Trust Co., 160 N.Y 494, 55 N.E. 296, which has been consistently followed on this point, it was held by the Court of Appeals, that intestacy in such case, exists as of the date of the death of the testator, and this is the only date as of which the intestacy can logically exist. Different rules might apply were there other persons living who might take under the will, but here there were none.
It therefore follows that with the existence of intestacy upon the death of the decedent, George Zeh, on July 28, 1916, his property descended to his children, subject to his widow's dower interest in his real estate, and her intestate interest in his personal property. When the daughter, Mary Hilda Zeh, died on January 1, 1919, intestate, under the statute in effect at that time her interest descended to her mother, Ella Zeh, for life, with the reversion to her brother, George Zeh.
Upon the death of George Zeh, Jr. on January 5, 1919, intestate, his interest descended in lee to his mother, Ella Zeh, and she thereupon became the sole owner thereof,
The respondents, however, contend that the foregoing question is "res judicata", and rely upon Section 80 of the Surrogate's Court Act, upon a decree of the Acting Surrogate made December 29, 1921, and the proceedings thereon, and upon a tax decree made and entered on July 15, 1920.
In the accounting proceeding resulting in the decree of December 29, 1921, there appears to be some uncertainty as to the position taken by the petitioner, the executrix. Various briefs were filed and have been examined by this Court. Here, however, the executrix was accounting for the personal property of the decedent, and her administration thereof, and the question of the title to the real estate does not definitely appear to have been before the Court. In any event, the Acting Surrogate did not purport to pass, and refrained from passing, on the question of descent of the title to the real estate and limited himself to the distribution of the personal property for which the executrix was accounting. Even here, the provision is made only for the distribution after the termination of the life estate "among the next of kin of said George Zeh", without identifying said next of kin, or specifically, the date of determination of such identity. Furthermore, this decree was made prior to the statute abolishing the distinction between "heirs at law", and "next of kin". At that time the primary meaning of "next of kin" was, "those persons who succeed to one's personal property at the time of his death". City Bank Farmer's Trust Co. v. De St. Aubin, 270 App.Div. 588, 61 N.Y.S.2d 736, 738.
Section 80 of the Surrogate's Court Act in effect at the time of the making of the decree of December 29, 1921 provided as follows:
"Every decree of a surrogate's court is conclusive as to all matters embraced therein against every person of whom jurisdiction was obtained."
In the Matter of Seaman's Will, 1949, 275 App.Div. 484, 90 N.Y S.2d 336, 339, the Appellate Division said, "On the other hand the effect of such a decree is limited in its operation to the matters actually before the court. It has no effect on matters not considered or passed on in the proceeding' in which the decree was made." In this case, the Appellate Division, 3rd Department relied on the authority of Van Rensselaer v. Van Rensselaer, 113 N.Y. 207, 21 N.E. 75, which was followed in Joseph v. Herzig, 198 N.Y. 456, 92 N.E. 103, This Court cannot agree that the decree of the Acting Surrogate, December 29, 1921, constitutes "res judicata".
The respondents also refer to the Section 274 of the Surrogate's Court Act, in effect making a decree on judicial settlement conclusive. Since the decree did not provide for the distribution of the real estate, it cannot be deemed conclusive here on that point.
The tax decree of July 15, 1920, presents a different problem. This decree assessed an inheritance tax against the respondents upon the hash of their ownership of a future interest in the estate of the decedent, and the respondents claim that this constitutes "res judicata" as to such ownership. They also cite the Seaman case, and also the Van Rensselaer and Herzig cases above referred to. The petitioner relies chiefly upon Trustees of Amherst College v. Ritch, 151 N.Y. 282, 45 N.E. 876, 37 L.R.A. 305. holding that the- adjudication of a surrogate in a tax proceeding is binding upon the question of taxation o y. The respondents reply that Section 80 of the Surrogate's Court Act was passed subsequent to the decision in the Amherst College case, and that that is not the- law. As against (his contention, the petitioner cites Nortz's Estate, 272 App.Div. 485, 71 N.Y.S.2d 858 863, which follows the Amherst College case, and there is considerable controversy in the briefs and memoranda as to just what the Court said there. Various portions of the opinion have been quoted and various interpretations* placed thereon by the parties, as is true of the majority of the authorities cited by all of the parties. However, this Court has carefully examined all the authorities cited and others, and finds that the Amherst College case has been consistently followed, both be-lore and after the enactment of Section 80 of the Surrogate's Court Act. In the Nortz's case, the Appellate Division, 2nd Department, said (and the Court believes this to be the law), "It is established in this State that a tax order is binding on questions of taxation only" there relying on both the In me Ulfmann 137 N.Y. 403, 33 N.E. 480 and Amherst College cases. The tax decree of July 15, 1920, therefore, cannot be considered " res judicata" as to the- questions here involved.
The third point raised by the respondents is that the petitioner is estopped by a position previously taken by her, in the tax proceeding and in the accounting proceeding, from asserting her ownership of the decedent's real estate. The elements of estoppel have been variously set forth by the Courts, and by the parties in their respective briefs and memoranda. Any position taken by the petitioner in either of the above proceedings, or in any prior proceeding in this estate, was one of law, rather than fact. The weight of authority in American Jurisprudence appears to be to the- effect that "Estoppel" does not apply to a position taken on a matter of law, and that the doctrine cannot be invoked to divest title to real estate. This, however, is not so clearly defined in the State of New York, there being authority in New York State for the application of the doctrine in both instances, it is said that Estoppel "rests upon the word or deed of one party upon which another * * * relies, and, so relying, changes his position to his injury". Lynn v. Lynn, 302 N.Y. 193, 97 N.E.2d 748, 753.
In the tax proceeding, it has been determined herein that the tax decree was not binding as to the title to the real estate. Therefore, regardless of any position which might have been taken by the petitioner in that proceeding, there was no determination resulting from that position, which was binding neither upon the petitioner or upon the respondents as to the title to the real estate, No decree was made as to such title of which the petitioner could he said to have availed herself at that time. A true construction of the law was available to the respondents as well as to — the petitioner, and she was neither in possession of, nor had available to her, any facts, information, or advice which were not equally available to' the respondents.
The same is true on the judicial settlement. Here no decree was made determining the ownership of the meal property, and on that proceeding, it appears that the petitioner desired a distribution to be made as indicated in. the prayer for relief in the petition which reads as follows: "Wherefore your petitioner prays that the said balance and remainder aforesaid be adjudicated, and decreed to be intestate property and estate of decedent, and distributed in accordance with the laws of descent and distribution of the State of New York"
Estoppel -is essentially of an equitable nature. The only benefit accruing to the petitioner by any position taken by her, if any, was against, rather than for her interest, It cannot be said that any act or deed on the part of the petitioner caused the respondents to "change" their position to their injury. If they were aggrieved by the tax decrees they had a remedy.
It is not within this Court's conception of equity that the petitioner should now be estopped. from asserting her rightful title to the decedents property.
While this Court does not desire to "pick the pockets" of any party to this proceeding, there are few lawsuits or judicial disputes which do not involve financial advantage or detriment to one or the other of the parties. Were the Courts to refrain front the judicial determination of legal controversies, on this basis, it is difficult to see how any such matters could be finally adjudicated.
The petitioner, Ella Zeh, is entitled as the owner in fee of the decedent's real estate to the proceeds thereof,
The importance of the issues involved, justifies allowances to all parties appearing herein.
Application may be made on the adjourned date of this proceeding for such allowances and a decree submitted according to all of the foregoing.