Ellerson v. . Westcott , 148 N.Y. 149 ( 1896 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The plaintiff and the defendants, Elizabeth P. Westcott and Cora P. Ganung, were never tenants in common or joint tenants of the real property sought to be partitioned. The plaintiff claims title as one of the heirs at law of the testator, Munroe Westcott. The record title is by the will in the defendants named and others. If the will is given full effect, the plaintiff has no title to or interest in the land. The land, at the commencement of the action, was in the possession of the executors in their character as such, or as devisees under the will.

The action of partition is given when two or more persons hold and are in possession of real property as joint tenants or tenants in common. (Code, § 1532.) The plaintiff not being in possession, and not sustaining the relation of tenant in common or joint tenant to the defendants who were in possession, cannot maintain an action for partition unless by reason of the exception contained in section 1537 of chapter 14, title 1, article 2 of the Code, relating to actions for partition. That section is as follows: "A person claiming to be entitled as a joint tenant or a tenant in common, by reason of being an heir of a person who died holding, and in possession of, real property, may maintain an action for the partition thereof, whether he is in or out of possession, notwithstanding an apparent devise thereof to another by the decedent and possession under such devise. But in such an action the plaintiff must allege and establish that the apparent devise is void." This section is a substantial re-enactment of section 2 of chapter 238 of the Laws of 1853, entitled "An act relative to disputed wills." If the fact stated in the proposed amendment, to the effect that the defendant Elizabeth P. Westcott caused the death of the testator by poisoning or other felonious means to enable her to come into possession of the estate devised to her, would, if proved, make the devise to her void, the court had power to permit the amendment to be made and the denial of the motion at Special Term, which was put on the want of power, was erroneous. If, on the other hand, conceding that the fact sought to be introduced by amendment was true, nevertheless the devise to the testator's wife was not thereby rendered void, the issue tendered could not be tried in a partition action. The plaintiff relies upon the case of Riggs v. Palmer (115 N.Y. 514) as establishing that where a legatee or devisee under a will, to prevent a revocation or to anticipate the enjoyment of the benefit conferred, puts the testator to death, the felonious act makes the legacy or devise void. We think this contention is not justified by that case. That was an action by an heir at law of a testator against a devisee and legatee who had murdered the testator to obtain the possession of the property given him by the will, to cancel the provisions for his benefit and to have it adjudged that he was not entitled to take under the will or to share, as distributee or otherwise, in the estate of the testator, and the relief was granted. But the court did not decide that the will was void. A will may be void for many reasons. It may not have been executed with the forms required by law. It may dispose of the property upon limitations in contravention of law. The testator may, by reason of alienage or other incapacity, be incapable of making a will. The statute may interpose a prohibition against devises or bequests to certain persons or corporations or affix limitations, and wills made in violation of the statute will be void either in whole or partially. (Hall v. Hall, 81 N.Y. 130.) A will may be procured by fraud or undue influence, and if this is established the will is void because it is not in law the act of the testator.

But the case presented by the fact sought to be introduced by the amendment to the complaint in this action does not show, or tend to show, that the will was void. It alleges neither incompetency on the part of the testator, nor any defect in the execution of the will, not that the devise to the testator's wife was in contravention of any statute, nor that it was procured by fraud or undue influence, nor that the wife was under any incapacity to take and hold property by will. If the fact sought to be incorporated in the complaint can be established, Riggs v. Palmer is an authority that a court of equity will intervene and deprive her of the benefit of the devise. It will defeat the fraud by staying her hand and enjoining her from claiming under the will. But the devise took effect on the death of the testator and transferred the legal title and right given her by the will. The relief which may be obtained against her is equitable and injunctive. The court in a proper action will, by forbidding the enforcement of a legal right, prevent her from enjoying the fruits of her iniquity. It will not and cannot set aside the will. That is valid, but it will act upon facts arising subsequent to its execution and deprive her of the use of the property. The civil law debarred one who procured the death of another from succeeding to his estate, either as testamentary heir or by inheritance, on the ground that he was unworthy. Domat says, he shall be deprived of the inheritance (Part 2, book 1, title 1, § 3), and in the Code Napoleon, section 627, such a person is classed among those "unworthy to succeed, and as such excluded from succession." This was one of the penalties for his misconduct. It operated to exclude him from the benefit of the devise on the principle that by his conduct he had debarred himself from claiming it.

The conclusion reached makes it unnecessary to determine the question argued, whether a trial and conviction for the crime is a condition precedent to the invoking the application of the doctrine of Riggs v. Palmer in an action to debar a devisee from taking under the will of the person whose death he is charged to have feloniously caused. It is proper to state that the issue sought to be introduced in this case was tried before the surrogate on the probate of the will, and that the answering affidavits used on the motion to amend, deny in the strongest terms the charge made against the wife. The only question before us is one of statutory construction. We have no concern with the question whether it would or would not be proper to permit the trial of the issue sought to be made in an action of partition. The statute is our only guide, and having reached the conclusion that the facts alleged, if true, did not make the will void, the statutory condition does not exist which enables the plaintiff to bring that issue into this case. It is quite true that the scope of the action of partition has been greatly enlarged by recent legislation (see Weston v. Stoddard, 137 N.Y. 127), but section 1537 excludes by necessary implication a contest in partition between a plaintiff claiming as heir and a devisee in possession, except when the "apparent devise is void," and this is not that case.

This leads to a reversal of the order of the General Term and an affirmance of the order of the Special Term, with costs.

All concur.

Ordered accordingly.