Booth v. Kitchen

The object of this action was to sustain the right of the plaintiffs to legacies in trust, provided for them by a codicil to the will of Otis Dyer, deceased. The will, together with a second codicil, which, in terms, revoked the bequests in the plaintiffs’ favor, were admitted- to probate; the other was rejected, because of its final revocation by the last codicil. That such an action cannot be sustained in this court for the purpose of establishing the first codicil in which the legacies were provided for, and annulling the probate of the codicil afterwards executed, appeal’s to be quite well settled by the authorities. (Muir v. Trustees, etc., 3 Barb. Ch., 477; Vanderpoel v. Van Valkenburgh, 2 Seld., 190; Colton v. Ross, 2 Paige, 396.) And the jurisdiction created by the statute of 1853 is not broad *258enough to include it. For that has been, in terms, confined to a will of real estate, or a devise of that description of property. (3 Kev. Stat. [5th ed.], 141, §§ 18, 19.) It is not sufficient to make a ease within these provisions that the will may devise real estate, when the controversy is in fact limited, as it is in this instance, to the disposition of the personal estate only. For these reasons, and those assigned in the opinion delivered by Presiding Justice Davis on the denial of the motion to continue the injunction, the order appealed from should be affirmed, with costs.

It seems singular that no case has arisen upon conflicting codicils in wills of personal property, presenting the exact questions raised in this case, and determining whether or not the Court of Chancery may take jurisdiction to try the validity of a second codicil which revokes a former codicil, and takes the legacies therein bequeathed away from the persons designated in the revoked codicil.

The Surrogate’s Court had undoubted jurisdiction to try and determine the validity of the second codicil. That it has done, and upon such trial has admitted it to probate on the citation of all persons required to be cited by the statute. The present plaintiffs were not next of kin nor heirs at law of the testator. They would have been, if the first codicil had not been revoked by the second, mere recipients of the testator’s bounty; but the revocation of the bounty once intended for them, and its disposition to the parties named in the second codicil, have left them mere strangers to the will. This is the effect of the statutes and of the judgment of the Surrogate’s Court. Put it is claimed that as the plaintiffs were interested in maintaining the first codicil by overthrowing the second, and have had no hearing and no day in court, on that question, there is a clear casus omissus in the statute, which a court of equity has jurisdiction to remedy. Forcible as this argument seems to be, it nevertheless addresses itself rather to the legislature than to a court of equity, because if the statutes *259have declared the probate of a will or codicil under these circumstances conclusive upon all other courts, a court of equity is not at liberty, upon the ground of wounded conscience, to take jurisdiction in defiance of the statute.

The authorities seem to hold, with uniformity and clearness, that this court has no jurisdiction, under any circumstances, of an action to revoke the probate of a will of personal property. (Vanderpoel v. Van Valkenburgh, 6 N. Y., 190; Heyer v. Burger, 1 Hoff. Ch., 1; Colton v. Ross, 2 Paige, 396; Muir v. Trustees, etc., 3 Barb. Ch., 477; Bogardus v. Clarke, 1 Edw. Ch., 266; 4 Paige, 623; 7 id., 397; and see other cases cited by counsel and by the court in Vanderpoel v. Van Valkenburgh.)

'The proposition of the plaintiffs is, that this court has jurisdiction to entertain plaintiffs’ action to defeat the second codicil, because the Surrogate’s Court was not bound by law to entertain jurisdiction of their allegations that it was procured by fraud and undue influence. The question of the validity of the codicil necessarily involved the question of fraud and undue influence, and the surrogate, either directly or by necessary implication, passed upon them in adjudging such validity. The executors, in presenting the will for probate, were the representatives of all parties who were not by law entitled to citation. They affirmed, and were bound to maintain the validity of all parts of the will which purported to divert any portion of the estate from the legal channels into which it must have fallen if the deceased had died intestate. I am much inclined to think that if plaintiffs had appeared in the Surrogate’s Court, and prayed leave to contest the second codicil and establish the first they ought not to have been prevented from doing so, and that the court would have been justified in holding, on appeal, that the Surrogate’s Court was competent to entertain such a controversy notwithstanding it was not required to cite the plaintiffs to attend the probate. This is upon the ground that that court is the tribunal clothed with exclusive jurisdiction of the probate of wills of personal estate, and is therefore the “ competent tribunal” who may declare such wills void, subject of course, to the appellate review given to other courts. (See Campbell v. Logan, 2 Bradford, 90; and see Allen v. McPherson, 1 H. of L. Cases, 191.)

*260In a case of so much doubt, I do not deem it proper that this court should allow its writ of injunction to restrain the action of the executors under the surrogate’s decree. The plaintiffs have delayed till the eve of the expiration of the year within which executors are prohibited by law from proceeding to pay legacies, and they now invoke this tribunal to further resf¿raiu them by injunction. They should, under such circumstances, show a case of reasonably clear if not undoubted right to that process.

The complaint does not bring all the necessary parties before the court. Its allegations on the subject of fraud and undue influence, and of the persons by whom the same are supposed to have been exercised, are extremely vague and indefinite. These facts also add force to the objections that a plain and clear right to the writ is not shown. I think it my duty, therefore, to deny the motion to continue the injunction, and to dissolve the injunction heretofore issued, with ten dollars costs of the motion to defendants.

Order affirmed, with costs.