Henriques v. Sterling

49 N.Y.S. 1071

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 11, 1898
• Status: Published

Opinion

PATTERSON, J.

These are appeals by the plaintiffs from two orders made at the special term, and they may be considered together. By the first order the complaint was dismissed on the ground that the plaintiffs had wholly and unreasonably neglected to serve or attempt to serve the summons and complaint on defendants who were necessary parties, to a complete determination of the matter in controversy, and that no substantial excuse had been presented for such neglect. The contents of the affidavits that were used upon this motion fully justified the court in making the order appealed from, and it is unnecessary to add anything to the opinion, written by Mr. Justice RUSSELL in deciding that motion.

The second order appealed from .was made upon a denial of a motion of the plaintiffs, which, in substance, was one for relief from the order of the special term last Considered. The second motion was made in form for a resettlement of the first order, or to vacate and set aside that order. It becomes necessary, in disposing of the appeal from this second order, to advert to the situation of the parties, and the facts which were made to appear to the court on that motion. The action was brought in partition, the plaintiffs claiming to be heirs at law of Miriam A. Osborn, deceased. Mrs. Osborn left a last will and testament, of which the defendants John W. Sterling and the Central Trust Company of New York were executors, and under which they were trustees. Associated with them as defendants were, among others, Henriette Trowbridge, an infant, the Miriam Osborn Memorial Home Association, and the President and Fellows of Tale College in New Haven. The purpose of the action evidently was to try title, as that may now be done in a partition suit under the provisions of the Code of Civil Procedure. The rights of the plaintiffs, according to the allegations of the complaint, are based altogether upon the claim that the will of Mrs. Osborn was procured by fraud and undue influence, or that some of its provisions were invalid. It appeared by the affidavits that the complaint had been dismissed because of the failure of the plaintiffs, after many months of delay, to serve Miss Trowbridge and the two corporations named with the summons. After the first order was made, Miss Trowbridge wasl served with the summons, the Osborn Memorial Association voluntarily appeared, and a gentleman connected with Tale College was served with the summons in the city of New Tork. There was nothing whatever to show that two of these parties could not have been served in the way in which service was eventually made upon them at any time during the interval between the beginning of the suit and the making of the original motion to dismiss the complaint, or that the voluntary appearance of the Osborn Memorial Association could not have been procured upon application during that interval. The fact of the service under such circumstances only seems to emphasize the neglect, because of which the action was dismissed. But, notwithstanding that, if it had been made to appear to the court below that there were merits in the plaintiffs’ cause of action, and that they had rights and interests to be protected, they should have been relieved from the consequences of the neglect upon fitting terms. But we do not find such merits in the plaintiffs’ claim as would justify a reversal of this order. The whole scheme of the plaintiffs’ action is that, by reason of the alleged invalidity of Mrs. Osborn’s will, she died, in reality, intestate, and that the plaintiffs are her heirs at law. It appears upon the face of the complaint that they are not her heirs at law. She left a son, Howell Osborn, her surviving, and he was her only heir at law, and the descent was cast upon him. The plaintiffs are the sisters of Mrs. Osborn. If the will were entirely invalid and void, he would take tinder the statute.

It is claimed, however, that the plaintiffs’ action is not based exclusively upon the allegation that the whole will was invalid and void, but that there are averments contained in the amended complaint sufficient to support the action, even in case the will were valid.' It is set forth in the ninth paragraph of the amended complaint that certain provisions of the will of Mrs. Osborn are illegal, and in contravention of a law of this state which prohibits a person leaving a surviving child from devising or bequeathing more than one-half of her estate, in trust or otherwise, to benevolent, charitable, literary, scientific, religious, or missionary societies, associations, or corporations; and it is also averred that by the terms and provisions of the pretended will of Mrs. Osborn, and notwithstanding the fact that at the time of the alleged execution of such pretended will and at the time of her death she had a son living, she was made, by the will, to devise and bequeath more than one-half of her estate in trust to benevolent societies, contrary to the statute in such case made and provided. The claim is that by virtue of that allegation of the complaint there was an invalid disposition shown to have been made of a certain portion of her estate, which, if the will were otherwise valid, would fall into the residuary estate, and that Howell Osborn, the son, could not take under the residuary clause of the will, because, although he is therein named as a devisee and legatee of some part of the residuary estate, his right to take was made conditional upon certain things; that these conditions did not exist, or were not complied with, and that, therefore, he was not able to take; and that, necessarily, it must follow that, he being excluded, the plaintiffs are the heirs at law entitled to take, and hence to maintain this action. The attitude of the plaintiffs, therefore, is that Howell Osborn, being excluded from taking any of the residuary estate into which the unlawfully devised realty fell, that portion which would have passed to him but for the inhibitory provision of that residuary clause goes; to the plaintiffs. This contention is not maintainable. Under the residuary clause (Howell Osborn being excluded) the whole estate, by the terms of the will, if those terms were enforceable, would go, subject to certain conditions, to benevolent societies. But they cannot take, and there is intestacy, therefore, as to the portion which they are disabled from taking. The statute then vests the title to that portion. The direct heir, lineal descendant, becomes seised at the death of the ancestor. "While the void provisions of a will may be resorted to for the purpose of ascertaining the intention of the testator with reference to the right of any person to take under other provisions of the will, no authority has been cited, or principle suggested, by which they can be resorted to for the purpose of preventing the operation of the statute of descents, and to institute collateral for direct heirship. There being intestacy as to the unlawfully devised realty, it descended to Howell Osborn, and the plaintiffs have no claim to it as heirs at law.

We think, therefore, that the second order appealed from was also rightly made, and that both orders must be affirmed, with costs. All concur.