Citation Numbers: 58 Misc. 449, 109 N.Y.S. 474
Judges: Kelly
Filed Date: 3/15/1908
Status: Precedential
Modified Date: 1/13/2023
The plaintiff sues to recover rent of premises in this county. The defendant hired the premises from one Joseph Applegate by the month. It is conceded, or established by evidence, that Mr. Applegate died, in the year 1901, and that he left a last will and testament in which he devised the premises to the plaintiff. The will was admitted to probate by the surrogate of Kings county as a will of real and personal property. The plaintiff demanded payment of the rent; but the defendant, although he paid,the plaintiff
If tenants are to be allowed to try the validity of wills and questions of testamentary capacity in actions to recover a month’s rent, there is no reason why similar questions cannot be litigated in summary proceedings, -with the result that a will devising various parcels of real estate, or an apartment house occupied by numerous tenants, may be attacked successively by each tenant in the various tribunals having-jurisdiction over actions for rent and dispossess proceedings. One court or one jury may decide one way on questions, of validity,, testamentary capacity or undue influence, and another court or jury may decide to the contrary on sonle or all of these questions, and the transfer of titles and the ownership of real property will be involved in most hopeless confusion. I think no such doctrine can prevail.
The probate of the'will is presumptive evidence that it was duly executed and that it is valid as a will of real property as against the parties duly cited and against persons claiming through or under such parties. Code Civ. Pro., § 2627. The decree is presumptively regular, and the heirs, who are endeavoring to interfere through the tenant and whose rights he attempts to assert, are presumed to have been cited. Code
The plaintiff’s motion-is granted, and a verdict is directed for the plaintiff for the sum of $115.50, with interest.
Ordered accordingly.