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decision of the jury in the Supreme Court was not legally inconsistent with the precisely contrary verdict of the jury in the Court of Common Pieas. The personal property was distributed in accordance with the verdict of the Common Pleas jury to the legatee, and the land was apportioned among the others in absolute derogation of the will, as being void for undue influence and incompetency of the testator. Justice Follett, in the opinion, says: "It is apparent that under our boasted reform procedure a will relating to realty and personalty may be declared void because of the insanity of the testator, or for any other cause, in respect to one species of property, and valid in respect to the other kind of property, on the ground that the testator was sane. And so there may be two final adjudications, both supposed to be verities, one affirming a will to be valid and the other affirming it to be void. And in case a will relating to realty and personalty is admitted to probate in the Surrogate's Court, and the decision is reversed by the Supreme Court, and the issues are tried before a jury, which are found in favor of the validity of the will, upon which an adjudication is entered by the Surrogate's Court, decreeing the probate to be valid, the heir may, notwithstanding, retry the question as to the realty, and possibly, as in the case at bar, obtain a verdict and a judgment that the will is invalid." That is the first condition of our law, that the decision. in the Surrogate's Court has practically no effect whatever on the validity of the will at that particular time.
The second class of cases to which I wish to call attention is typified by a somewhat older case reported in the First Miscellaneous Reports in the Matter of Odell, and in a later case in the Matter of Tilden, and in a very recent case, just decided by the Court of Appeals, in a decision four to three, in the Matter of Killan. In the
Odell case Mrs. Odell died in 1889. Letters testamentary were issued, the executor realized on the estate and then distributed it in accordance with the law. Three years afterwards a gentleman, who had been residing in Arkansas for a number of years, who seemed to be entirely unknown to any of the persons connected with the property, presented himself as a son, I think it was, or brother, of the deceased, and claimed the probate should be set aside as having been rendered without jurisdiction as to him. He made his motion by way of vacating the former decree and it was vacated. He did not need to expose himself to that practice, as the Court has since decided. In the Tilden case a similar question came up, and it was there particularly noted that while the statute made the decree admitting a probate conclusive as to the personalty, a decree refusing to admit the will to probate was not binding on anybody; rather an abnormal condition. In the Killan case just decided, a woman died in Rochester, leaving a small estate. None of the relatives applied for administration and the undertaker applied for letters. They were issued to him. He realized on the estate and, when he had paid the debts, a number of cousins, or alleged cousins, appeared and claimed to be the next of kin of the deceased. The administrator denied it and they went to trial on that issue. It was decided that they were the next of kin. The administrator was ordered to distribute, and he had not fairly gotten the money out of his pocket (eight months had elapsed) when a gentleman from Ireland presented himself and said, "I am the brother of the deceased and the only next of kin, and I desire that you should account to me." The administrator set up the former adjudication in the Surrogate's Court as a bar, that he simply obeyed the decree of the Surrogate requiring him to pay, and they took issue on that question of aw.
The Surrogate decided it was a bar. Four judges in the Appellate Division decided the decree was a bar. It came up to the Court of Appeals and four judges decided it was not a bar, while three held it was a bar; the four judges. deciding it was not a bar, basing their decision entirely on this point, that this man from Ireland was not in any way cited to attend this proceeding. He was not joined as a party and he could not be bound by a decree without his day in court. In other words, that holding is, that the proceeding in our Surrogate Court is a proceeding in personam binding only on the persons cited and not upon all the world. In other words, the fundamental questions that should be decided in every estate, the very first question to come up, who are the heirs; who are the next of kin; who is interested in the estate, shall not be decided by our court. That is the condition of the law. I was asked this noon, what do you define the difference between a proceeding in personam and a proceeding in rem? I should say this: that a proceeding in rem has no party and a proceeding in personam has a party. The proceeding in rem binds all the world and all the world is cited to attend. The court proceeds upon the property in its entirety, inviting everybody to come in and dispose of it. To be sure the Court of Appeals suggested, that is, the majority of the court, that this administrator might have cited unknown persons; but if you will carefully examine the sections of our Code you will find that our Code provides that you may cite unknown persons when you can tell who they are. If you will define who are unknown persons here you may cite them. Why should they not be in a proceeding where we cite the whole world, unknown and known persons, and bring them all in regularly? You may say in ninety-nine cases out of a hundred we may know who is the party here. It is not for them.
Suppose it is a real estate title you wish to examine. You know nothing about this family, why should you not have an adjudication that you can rely on, as to who the real parties in interest are, and regard it as binding and protecting the innocent purchaser?
Another class of cases to which I wish to call your attention is typified by the Matter of Valentine in the First Miscellaneous. In that case there was a testamentary trustee, the executor was the testamentary trustee. He was intrusted with power of sale of certain real estate and sold it. The beneficiary of the trust came into the Probate Court and showed that this executor, or testamentary trustee, had sold this property to his own son and that his son in turn had transferred it to his mother, that is, the wife of the testamentary trustee, and the beneficiary asked that this testamentary trustee be surcharged, alleging that he sold the property for an inadequate price and that it was a deliberate fraud on his trust. There did not seem to be any other question about the facts, and the Surrogate, relying on the Fulton case, said: "I have no jurisdiction, I am at the end of my jurisdiction. To be sure this is a matter affecting the distribution of property under the will, which belongs in all common sense in the probate proceeding, but the authority in me to proceed in any kind of a case is not general, but specific, limited by the express terms of the power conferred upon me."
So far we have taken the three points: First, that our probate procedure does not apply to real estate, and I could go on and emphasize this in forty ways by illustration after illustration of the extraordinary conditions presented. Perhaps I may give you an instance in my own experience. I had occasion a few years ago to tender a title to another member of this Association in the northern part of the State. This title, from 1808 to 1899, passed
solely by descent or by devise, which we did not know, because there were twenty wills in the chain, foreign wills, where it was impossible to prove any request of the witness, the provision of our statute not applying in these other States. The witnesses to these twenty wills were all dead, so we were relegated to offering a quit-claim to those in the line of devise and in the line of descent. There were in the chain of title seventy-two decedents, and I presented my friend with a bundle of ex parte affidavits showing the line of descent. He objected to having them thrust down his throat. I said, " Very well, what will you have?" He thought awhile and said he would have a probate of heirship. I said, "How will that help you? A probate in the first place is only prima facie. Not only that, it is prima facie only against the persons you cite, and who will you cite? You will cite the persons named in these affidavits and nobody else, and they have all joined in the deed. It will not help you a particle. Besides, did you ever have a probate of heirship, and will you undertake the seventy-two of them?" No, he had never seen a probate of heirship. I said, "Did you ever see anybody who had seen one?" He said he did not know as he had. I said, "I have. I asked twenty lawyers in New York and none had ever seen or heard of it. I have the advantage of them. I once conducted a probate of heirship myself, but it was in another State. I cannot see how that will help you." We discussed the matter backward and forward for a week. Finally he took the title on ex parte affidavits because our law gave him absolutely nothing better. There was no possible way under our law by which he could get any better. He could call the affiants as long as they lived. The moment they died the affidavit of the family was prima facie evidence. That was all he could get.