
    Nellie Garvey, Plaintiff, v. Francis J. Horgan, as Ancillary Executor of the Estate of Richard Garvey, Deceased et al., Defendants.
    (Supreme Court, New York Special Term,
    May, 1902.)
    Money had and received — What rights are personal — Foreign will as to personalty not subject to collateral attack.
    Rights, which the ancillary executor in this State o£ Richard Garvey, who died a resident of Suffolk county, Mass., and was an heir of Andrew J. Garvey, obtained under an agreement of settlement, made after the death of Richard Garvey, of a dispute which arose here in the lifetime of the widow and life tenant of the income of the realty of Andrew J. Garvey between the remaindermen, certain charitable institutions, and the excluded heirs, who claimed that his will violated Laws 1860, chapter 360, forbidding a person from willing more than one-half of his estate to charities, etc., are personal, being derived from the agreement and not from heirship.
    Therefore where the will of Richard Garvey ljas been duly probated in the probate court of Suffolk county, Mass., his daughter, Who did not join in the agreement of settlement, cannot, as heir of Andrew J. Garvey, where she does not allege that his will was invalid, maintain an action in this State against her father’s ancillary executor to recover all the moneys, paid him as such under such rights, on the ground that her father’s will was obtained by undue influence — and this because the decree of the Suffolk county probate court cannot be attacked by her collaterally and also because her father might have owed debts and she would then be entitled only to an accounting as to the surplus of his estate.
    Action for money had and received. Demurrer to complaint.
    Kelson J. Waterbary (Edmund E. Dodge, of counsel), for plaintiff.
    Leonidas Dennis (Charles H. Fuller, of counsel), for defendant, United States Fidelity & Guaranty Company.
   Steckler, J.

The plaintiff is a daughter of Richard Garvey, one of the heirs-at-law of Andrew J. Garvey, deceased. The said decedent, by his last will and testament and codicil thereto, devised his real property to a trustee to pay the income to his widow during her life, and on her death to distribute the same among certain charitable institutions.

During the life of the widow a dispute arose between the heirs-at-law of the testator and the charitable institutions to whom ha had devised his estate as to the validity of the devise to them, the contention of the heirs being, apparently, that contrary to the provisions of the act of 1860 (chap. 360) the testator devised more than half of his net estate to said institutions; and to settle the dispute an agreement was made between said devisees, the widow and all the. heirs-at-law, except the plaintiff, by which it was stipulated that all the real property should be sold under the power of sale given to the trustee in the will, and that the proceeds should he paid to the heirs and devisees and others entitled in certain proportions.

Before the making of the agreement Bichard Garvey died, a resident of and at the city of Boston, Mass., leaving a last will and testament bequeathing and devising all his- property to certain persons therein named; said will was duly proved in the Probate Court of Suffolk county in said State, and the executor thereafter procured ancillary letters testamentary in Mew York county. The said executor was a party to the agreement before mentioned.

The plaintiff alleges that her father, Bichard Garvey, was of unsound mind and incompetent to make a will,' and that the will made by him was procured by undue influence, and seeks in this action for money had and received to recover $29,212.63, the amount paid in pursuance of the aforesaid agreement to his executor. The United States Fidelity & Guaranty Company, surety on the official bond of the ancillary executor, demurs to the complaint upon the grounds that it does not state facts sufficient to constitute a cause of action and that the court has not jurisdiction of the subject of the action.

I think the demurrer on the ground of legal insufficiency is well taken. There is no allegation that the will of Andrew J. Garvey is invalid. The fact that for the sake of buying peace the devisees and the heirs made the agreement referred to does not prove invalidity. Whether or not the testator gave more than one-half of his estate to corporations or associations mentioned in the act of 1860 is a question of fact, which must he alleged and proved in an action by the heirs-at-law to recover possession of the estate which the testator devised to such corporations, but to which the prohibition of the act of 1860 applies. Garvey v. Union Trust Co., 29 App. Div. 522. The heirs of Andrew ,T. Garvey therefore had po rights in the real property devised which the plaintiff can enforce in this action on the theory that the will of her father, Bichard Garvey, was obtained by undue influence. Whatever rights the heirs-at-law acquired in the estate of Andrew J. Garvey they obtained through the agreement made by them and the devisees. It seems to me that such rights were personal, not real property, and as to those rights, contingent at the time of his decease, the will of Bichard Garvey was a will of personal property. Under the circumstances the decree of the Probate Court of Suffolk county, Mass., Richard Garvey’s domicile, was conclusive (Mills v. Duryee, 7 Cranch., 481; Crippen v. Dexter, 13 Gray, 333; Dublin v. Chadbourn, 16 Mass., 433; Parker v. Parker, 11 Cush., 519; Nelson v. Potter, 50 N. J. L., 324; Willett’s Appeal, 50 Conn., 330), and cannot be collaterally attacked by the plaintiff.

Even assuming that this court could go behind the Massachusetts decree, still the plaintiff would have no standing, for Richard Garvey might have owed debts sufficient to wipe out his estate, and the only right of the plaintiff, as next of kin of her father, would be to an accounting for and distribution of any surplus that might remain after administration.

The demurrer must, therefore, be sustained, with costs, with leave to amend on the usual terms.

Demurrer sustained, with costs, with leave to amend on usual terms.  