In re Proving the Last Will & Testament of Richardson

88 N.Y. Sup. Ct. 425

• Court: New York Supreme Court
• Decided: November 15, 1894
• Status: Published

Opinion

Follett, J.:

The learned counsel for the appellant asserts in his brief that this proceeding is not for the revocation of the probate of the will under section 2641 of the Code of Civil Procedure, but is a proceeding “ tc vacate and open the decree under section 2481 of the Code of Civil Procedure, subdivision 6,” which provides:

“ Sec. 2481. A surrogate, in court or out of court, as tbe case requires, has power: * * *

' “ 6. To open, vacate, modify or set aside, or to enter, as of a former time, a decree or order of bis court; or to grant a new trial ■or a new bearing for fraud, newly discovered evidence, clerical error •or other sufficient cause. Tbe powers conferred by this subdivision must be exercised only in a like case and in tbe same manner as a ■court of record and of general jurisdiction exercises tbe same powers. Upon an appeal from a determination of tbe surrogate, made upon ¡an application pursuant to this subdivision, tbe General Term of the Supreme Court bas tbe same power as tbe surrogate, and bis ■determination must be reviewed as if an original application was made to that term.”

Tbe sole ground on which tbe plaintiff seeks to revoke tbe probate of tbe will is that tbe Surrogate’s Court acquired no jurisdiction over her in tbe proceedings to probate tbe will. This proposition is predicated on four undisputed facts: (1) That when tbe will was probated, March 2, 1889, she was but nineteen years, five months and twelve days old; (2) that February 28, 1889, when she waived service of a citation to attend tbe probate, none bad been •issued; (3) that no citation to attend the probate was ever served on her; (4) that tbe surrogate failed to appoint a competent and responsible person to appear as special guardian for her in tbe proceeding to probate tbe will.

Apart from tbe question whether the Surrogate’s Court on March ■2, 1889, bad acquired jurisdiction of tbe plaintiff, we think that tbe •decree should be affirmed because of the action and non-action of -the plaintiff during three years, four months and nineteen days between tbe time she became of full age, and tbe date when she began these proceedings. During this period she accepted benefits under tbe probated will, none of which bas she offered to restore, ,and some of which she cannot restore. Tbe testator died February 20, 1889, and tbe plaintiff became of full age September 20,1890. Pursuant to tbe fifth clause of tbe will, she occupied a dwelling from tbe testator’s death to March, 1893, when she was married —■ ■during a period of more than four years, two and one-half of these years being after she became twenty-one years of age. Before she became of full age she received from tbe executors $165 in cash, and after slie became of age she received from them $260 in cash, and in addition has received since August 3, 1892, one-fourth of the net rent from four houses, her share amounting to more than twenty dollars per month. An action was brought against the executors and devisees by a woman who asserted that she was the widow of the testator to recover her alleged dower right, which the appellant and the other defendants therein settled on the 11th of February, 1891, by giving their bond for the payment of $50,000' one year from date, secured by three mortgages, executed by the executors and devisees on the real estate left by the testator. The executors paid $15,000 of this sum, and the remainder — $35,000 — was borrowed February 18, 1892, on the bond of the executors and devisees, secured by three mortgages, executed by them. This plaintiff was a party defendant in that suit, participated in its settlement and executed the two bonds and mortgages given for their security. In 1893 she began proceedings in the Surrogate’s Court, which are still pending, to compel the executors to account. From the death of the testator to this date the plaintiff has resided in the city of New York, has had personal knowledge of the will, of the proceedings taken to probate it and of the transactions of the executors and devisees thereunder, and has joined in such transactions. She does not assert that she was ignorant of any fact on which she bases her present application, but only that she was ignorant of the law applicable to those facts. She does not disclose why she desires the probate revoked. It is not alleged that the will is, for any reason, void, or even that she desires to contest its probate on any ground. In short, she discloses no merits.

In The Matter of Peaslee (13 Hun, 113) this General Term held that a legatee who has received a portion of a legacy cannot maintain a proceeding to revoke the probate of the will without restoring, or offering to restore, the sum received. The cases suppoi’ting this proposition, and they are numerous, are cited in the opinion and need not be here referred to. It is said .that the case last cited is not an authority for the position that the appellant is estopped, because in that case the petitioner, an adult, was a party to the proceeding to probate the will and the Surrogate’s Court acquired jurisdiction over her. However the fact may be, the report of the case shows that the decision was not placed on that ground, but upon the ground that a person, by accepting benefits under a probated will, is estopped from seeking to revoke its probate. Persons may estop themselves from questioning void judgments, decrees, acts and contracts — for example, a forged signature to a contract — provided they are not void as against public policy. The probate of a will is in the nature of a proceeding in rem and affects the status of the estate, which status, as established by the probate, may be ratified by a person interested, though no jurisdiction was acquired over such person when the will was probated. This ratification may be effected by a writing, solemnly executed, or by the acceptance of benefits under the will and proceedings, with full knowledge of all the facts connected therewith. The latter is what the appellant has done. A person sui juris, who is not served in an action which ripens into a judgment, through which the title to real property is affected, may, by accepting the benefits flowing from the judgment, with full knowledge of all the facts, bar himself from the right to vacate the judgment, and so an infant not served, by accepting, after he becomes of full age, the benefits Of. the judgment with full knowledge of all the facts, may so ratify it as to be estopped from moving to set it aside.

It will be observed that the section under which this proceeding was instituted provides: “ The powers conferred by this subdivision must be exercised only in a like case and in the same manner as a court of record and of general jurisdiction exercises the same powers.”

A decree of a Surrogate’s Court should not be vacated for fraud unless the facts would justify setting aside a judgment of the Supreme Court, which does not set aside its judgments on that ground unless the fraud is clearly established. (Smith v. Nelson, 62 N. Y. 286; Kinnier v. Kinnier, 45 id. 535.)

The section of the Code under which this proceeding is prosecuted provides: “ Upon an appeal from a determination of the surrogate, made upon an application pursuant to this subdivision, the General Term of the Supreme Court has the same power as the surrogate, and his determination must be reviewed as if an original application was made to that term.”

The undisputed facts in the record refute the appellant’s allegation that a fraud was practiced uj)on her or on the Surrogate’s Court in the proceeding to probate the will, and if the evidence produced by both sides ■ is weighed, that furnished by the executors greatly outweighs that which was given by the appellant.

The decree should be affirmed, with costs.

Yah Brunt, P. J., and O’Brien, J., concurred.

Decree affirmed, with costs.