Opinion
November Term, 1899.
Thomas Spratt and George E. Van Kennen, for the appellant.
Fred J. Merriman and John C. Keeler, for the respondent.
The plaintiff has a capacity to sue, since he rests under no legal disability. The question intended to be raised by the allegation of his incapacity is whether he is embraced within either class of persons to whom section 2653a of the Code of Civil Procedure gives the particular remedy therein provided. This question we proceed to consider, since if the remedy is not given to him, the complaint was properly dismissed.
The section, as first enacted in 1892, provided that "Any person interested in a will or codicil admitted to probate in this State, as provided by the Code of Civil Procedure, may cause the validity of the probate thereof to be determined in an action in the Supreme Court." In Lewis v. Cook ( 150 N.Y. 163) it was held that the action could only be brought by a person interested in maintaining the will, and not by one claiming in hostility to it. This construction, undoubtedly, led to the amendment of the section in 1897, enumerating three classes of parties who could bring the action, as follows: "(1) Any person interested as devisee, legatee or otherwise in a will or codicil, admitted to probate in this State, as provided by the Code of Civil Procedure; (2) or any person interested as heir-at-law, next of kin or otherwise, in any estate, any portion of which is disposed of or affected, or any portion of which is attempted to be disposed of or affected, by a will or codicil admitted to probate in this State, as provided by the Code of Civil Procedure, within two years prior to the passage of this act; (3) or any heir-at-law or next of kin of the testator making such will, may cause the validity or invalidity of the probate thereof to be determined in an action in the Supreme Court."
Under the facts alleged in the complaint the plaintiff in this action was the husband of the testatrix at the time of her death, and tenant by the curtesy in her real estate in case the testatrix had made no valid disposition of it. ( Hatfield v. Sneden, 54 N.Y. 280.) If this will is invalid, then he claims as devisee under her former will executed mutually and reciprocally with a will made by himself in her favor. He thus alleges an interest "otherwise" than as heir at law or next of kin of the testatrix, in the estate which the testatrix attempted to dispose of or affect by the will in question. Thus the case differs from Ocobock v. Eeles ( 37 App. Div. 114). The plaintiff is a person embraced in the 2d paragraph of the amended section, above quoted, and comes within a class not embraced in the original section. He asks to have the invalidity of the probate of the will determined. The original section provided only for the determination of the validity of the probate. We must give the effect to the word "invalidity" which the Legislature intended, and as the amendment followed shortly after the declaration of the law in Lewis v. Cook ( supra) we cannot doubt that the word was added to change the law and to embrace actions by the designated persons in hostility to the probate of the will. It is true that the 2d paragraph of the amended section speaks of wills admitted to probate "within two years prior to the passage of this act" (May 22, 1897), and this will was admitted to probate February 14, 1898. A literal reading might restrict the remedial provision in behalf of persons interested in the estate disposed of by the will or attempted to be disposed of, to such wills and codicils as were admitted to probate during the two years prior to May 22, 1897, but such a narrow construction would, no doubt, impute to the Legislature an intention contrary to the fact. That intent, doubtless, was to give the act a retroactive effect for the two years prior to its passage. The final paragraph of the section provides that "The action brought as herein provided shall be commenced within two years after the will or codicil has been admitted to probate."
The limitation of two years certainly extends to wills admitted to probate after the passage of the act, and there seems to be no doubt that the limitation was intended to apply in like manner to wills admitted to probate before its passage.
The learned trial judge seemed to think that inasmuch as the complaint alleged an agreement between the plaintiff and his wife for the execution of mutual wills, each in favor of the survivor, which they executed, and as the plaintiff relied upon it until after the death of his wife, and is still in possession of the premises, the agreement was valid; and that, therefore, this action is not really brought to establish the invalidity of the probate of the later will, but rather to establish or quiet his title under the former will of his wife.
It may be that the plaintiff had improperly united two causes of action, but that objection should have been taken by demurrer.
Now it may be much easier for the plaintiff to establish the invalidity of the probate of this will, by which the wife attempted to revoke her former will, and to dispose of her real estate to the prejudice of the plaintiff, than it is for him in the face of such probate to establish such facts as will show that his wife's former will is in the nature of an executed, irrevocable contract. If he shall establish the invalidity of the later will, even if he should fail to establish the earlier one, his estate, as tenant by the curtesy, would be confirmed. We think he has the right under the complaint, in the absence of a demurrer, to pursue the remedies he seeks.
The judgment should be reversed, new trial granted, costs to abide the event.
All concurred, except PUTNAM, J., not voting.
Judgment reversed, and a new trial granted, costs to abide the event.