
    Anna Irving, Respondent, v. Eliza Bruen, Appellant, Impleaded with John Guerin and Others, Defendants.
    Third Department,
    January 8, 1906.
    Equity—when, action in equity lies to set aside deed and will on grounds of undue influence and testamentary incapacity — evidence of subscribing witness as to testator’s incompeteney.
    Although a will has not been admitted to probate, an action in equity will lie to set it aside on the ground of lack of testamentary capacity and undue influence exercised upon the testator, if the defendant has not alleged that the plaintiff lias an adequate remedy at lew., /
    Moreover, when the'defendant, qs part of a single scheme, has Obtained title to the whole of the decedent’s estate by deed and- will, which are alleged to have been procured by undue influence and when the deceased was incompetent, an - action in equity to. set. aside said instruments will lie to prevent a multiplicity of'suits. " ■ atm,
    In such action a subscribing witness to' the will is compe^jyp .justify as to the testamentary incapacity .of the testator..
    Kellogg, J., dissented., , '
    Appeal by the" defendant, Eliza Bnien, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the. county of Washington on the ,4th day of. May, 1905, upon the decision óf the court rendered after a’-trial before the court Without a jury at'the Washington Trial Term.
    Upon the 6th day of August, 1901, Daniel Guerin deeded to the defendant,- one of his daughters, all of his real estate. On the Tfcln day of November, 1902, he made á will in which he gave to her all of his property, both real and personal. This action is brought to set aside both the deed and the will as executed by him while " incompetent to execute- the same and upon the- ground that his action was constrained by undue influence exerted by the defendant, Eliza Brüen.. The- case was tried before the court without a jury. The facts were found that- Daniel Guerin 'was incompetent at the time he executed both the deed and the will and also that both instruments were procured by the undue influence of the defendant, Eliza Bruen. From the judgment in favor of the plaintiff entered upon this decision the defendant, Eliza Bruen, has here appealed.
    
      D. J. Sullivan, for the appellant.
    
      Erskine C. Rogers, for the respondent.
   Smith, J.:

However well supported may be the .finding that these papers were executed by Daniel Guerin while incompetent to execute them the finding that they were procured by undue influence cannot be held to be against the weight of evidence. The fact that this defendant, Eliza Bruen, procured from Daniel Guerin a conveyance of all his property in a manner substantially similar to that which was attempted theretofore by John Guerin, which attempt was thwarted by her and then strongly condemned, throws light upon the transaction from which her actions must in a measure be judged. She was on the witness stand before the trial judge, and her appearance there, undoubtedly, had effect upon the determination that she had overreached her father and the other heirs in securing from him a deed and will of all his property. Without commenting in detail upon the evidence, produced it is sufficient to say that the evidence does not so far preponderate against the conclusion reached by the trial judge as to authorize us to reverse his finding of fact.

The judgment is challenged upon the law, however, first as a judgment' setting aside a will which has not been admitted to probate. Attention is called to the fact that by section 2653a of the Code, of Civil Procedure, which authorizes an action to set aside a will, it is only a will that is admitted to probate that under that section is subject to be set aside in an action. In Wallace v. Payne (9 App. Div. 34) it was held that the moment a will was admitted to probate an action at law could be brought under this section and, therefore, that x a party who would set aside 'the will had a complete and adequate remedy at láw and could not bring an action in equity to set .it aside, although' liis action' at- law had not accrued by yeason of the fact that the will had not yet been, admitted to probate. . Wliérean action at law does not exist, however, under the statute an action in equity has been maintained to set aside a will in equity. (Brady v. McCosker, 1 N. Y. 214.) The fact that plaintiff has' an adequate remedy at law is not available as a defense unless it be pleaded!(Town of Mentz v. Cook, 108 N. Y. 504 ; Lough v. Outerbridge, 143 id. 277.) That plaintiff had" an adequate remedy at law is not here pleaded.

In this -action it has been found that defendant lias wrongfully Obtained from Daniel -Guerin two papers, either-of which would give to her the right to this real estate. To set aside the deed ah action in equity is necessary. . It would be cumbersome practice which would require an action to set aside a deed and- a second action after the will had been probated to set aside the will. ■ Real estate passes under a will from the- death of the testator without probate. (Corley v. McElmeel, 149 N. Y. 228, 235.) Moreover, the deed and the wilbare part of one scheme to obtain the property - of deceased. It. was especially fitting,, therefore, that these actions should be joined and tried as* one. .

Complaint is further made of the admission in evidence of the testimony of Charles McGinnis as to whether Daniel Guerin was-competent to make a will. Charles McGinnis was one of-the wit-' nesses to the will. If that issue was properly before the- court the conclusion -of' the. subscribing witness lias always been held to be ' admissible. In the large amount of testimony that was offered, however, we cannot believe that the allowance of this evidence, even if Jit be inadmissible, had such an influence upon the mind of the trial judge as to have controlled his decision. We have examined the other exceptions presented and find no cause for disturbing the' conclusion reached by the trial judge.

The judgment should be affirmed, with costs..

All concurred, except Kellogg, J., dissenting.

Judgment affirmed, with costs.  