Opinion
January 8, 1906.
D.J. Sullivan, for the appellant.
Erskine C. Rogers, for the respondent.
However well supported may be the finding that these papers were executed by Daniel Guerin while incompetent to execute them the finding that they were procured by undue influence cannot be held to be against the weight of evidence. The fact that this defendant, Eliza Bruen, procured from Daniel Guerin a conveyance of all his property in a manner substantially similar to that which was attempted theretofore by John Guerin, which attempt was thwarted by her and then strongly condemned, throws light upon the transaction from which her actions must in a measure be judged. She was on the witness stand before the trial judge, and her appearance there, undoubtedly, had effect upon the determination that she had overreached her father and the other heirs in securing from him a deed and will of all his property. Without commenting in detail upon the evidence produced it is sufficient to say that the evidence does not so far preponderate against the conclusion reached by the trial judge as to authorize us to reverse his finding of fact.
The judgment is challenged upon the law, however, first as a judgment setting aside a will which has not been admitted to probate. Attention is called to the fact that by section 2653a of the Code of Civil Procedure, which authorizes an action to set aside a will, it is only a will that is admitted to probate that under that section is subject to be set aside in an action. In Wallace v. Payne ( 9 App. Div. 34) it was held that the moment a will was admitted to probate an action at law could be brought under this section and, therefore, that a party who would set aside the will had a complete and adequate remedy at law and could not bring an action in equity to set it aside, although his action at law had not accrued by reason of the fact that the will had not yet been admitted to probate. Where an action at law does not exist, however, under the statute an action in equity has been maintained to set aside a will in equity. ( Brady v. McCosker, 1 N.Y. 214.) The fact that plaintiff has an adequate remedy at law is not available as a defense unless it be pleaded. ( Town of Mentz v. Cook, 108 N.Y. 504; Lough v. Outerbridge, 143 id. 277.) That plaintiff had an adequate remedy at law is not here pleaded.
In this action it has been found that defendant has wrongfully obtained from Daniel Guerin two papers, either of which would give to her the right to this real estate. To set aside the deed an action in equity is necessary. It would be cumbersome practice which would require an action to set aside a deed and a second action after the will had been probated to set aside the will. Real estate passes under a will from the death of the testator without probate. ( Corley v. McElmeel, 149 N.Y. 228, 235.) Moreover, the deed and the will are part of one scheme to obtain the property of deceased. It was especially fitting, therefore, that these actions should be joined and tried as one.
Complaint is further made of the admission in evidence of the testimony of Charles McGinnis as to whether Daniel Guerin was competent to make a will. Charles McGinnis was one of the witnesses to the will. If that issue was properly before the court the conclusion of the subscribing witness has always been held to be admissible. In the large amount of testimony that was offered, however, we cannot believe that the allowance of this evidence, even if it be inadmissible, had such an influence upon the mind of the trial judge as to have controlled his decision. We have examined the other exceptions presented and find no cause for disturbing the conclusion reached by the trial judge.
The judgment should be affirmed, with costs.
All concurred, except KELLOGG, J., dissenting.
Judgment affirmed, with costs.