
    Smith v. Hilton et al.
    
    
      (Supreme Court, General Term, First Department.
    
    November 23, 1888.)
    1. Executors and Administrators—Action to Set Aside Deed to—Answer—Separate Cause oe Action.
    In an action by a residuary legatee against the executor, to set aside conveyances by the testator to him as "fraudulent, and for an accounting, allegations m the answer, of one made a co-defendant, as a person interested, that the will is void for the executor’s fraud in procuring it, are foreign to the cause of action, and not authorized by Code Civil Proc. N. Y. §§ 452, 521, empowering the court to determine the rights of defendants as between themselves.
    2. Same—Action to Test Validity oe Devise.
    Neither are they authorized by Code Civil Proc. § 1866, providing for an action to test the validity of a devise.
    3. Same—Probate and Contest oe Will—Jurisdiction oe Surrogate.
    They are objectionable, also, under Code Civil Proc. §§ 2472, 2626, 2627, 2647-2653, giving the surrogate jurisdiction to determine the validity of a will, and providing for a further hearing before him, as the means of avoiding the effect of his determination, while unreversed.
    4. Same—Counter-Claim—When Allowable—Independent Transactions.
    Such allegations are not authorized by Code Civil Proc. §§ 500, 501, allowing a counter-claim arising out of the contract or transaction alleged in the complaint, or connected with the subject of the action, or, in an action on contract, a counterclaim arising on another contract.
    5. Same—Motion to Strike Out Improper Allegations—Prayer of Judgment.
    The allegations, being voluminous, should be stricken out, on the executor’s motion, that being the only remedy available to him, but the demand for judgment should not be stricken out.
    6. Same—Relevant Allegations.
    Allegations that the residuary devise to the executor is void on its face, and that the property included in it descended, and became distributable; that other actions are pending to revoke the probate, and to have the devise to the executor declared void; and allegations raising an issue as to whether, by the true construction of the will, a part of the residue is bequeathed as alleged in the complaint, and admitting that plaintiff and another are interested,—should not be stricken out.
    
      Appeal from special term, Yew York county; Morgan J. O’Brien, Justice.
    In this action by Sarah Y. Smith, a legatee of Cornelia M. Stewart, deceased, against Henry Hilton, individually and as executor, etc., to have set aside, as fraudulent, certain conveyances from Mrs. Stewart to Hilton, and for an accounting, in which action others are joined defendants, as persons interested, the defendant Hilton moved to strike out certain portions of the answers of his co-defendants, and, among others, the parts of the following allegations of the answer of Bosalie and Virginia Butler, inclosed in brackets: “VI. These defendants admit that, by the terms of the said paper writing purporting to be such original will, as modified by the said paper writing purporting to be such codicil, dated May 80, 1882, there was (assuming such paper writing to have been valid and operative) given and devised to the plaintiff (in addition to a legacy of two hundred and fifty thousand dollars) one-fourth part of the residuary estate of the said Cornelia M. Stewart remaining after the paymentof the legacies and annuities purporting to be provided for in the said paper writings, and of the debts, if any, of the said Cornelia M. Stewart; [but whether, by the true construction and meaning of the said paper writings, (assuming them to be valid and operative,) there was also given and devised to the said Charles J. Clinch another fourth part of the said residuary estate these defendants say that they have no knowledge nor information thereof sufficient to form a belief.] VII. Upon information and belief, these defendants allege that the said Henry Hilton claims that, under and by virtue of the said paper writings, he is entitled, as trustee, to the remaining half part of the said residuary estate, to be had and liolden by him, upon (so-called) trusts purporting to be, or claimed by him to be, by such paper writings, in that behalf, declared, and that he likewise claims, in respect of such half part, to be vested with the (so-called) powers purporting to be, or claimed by him to be, conferred upon him by such paper writings in that behalf. [But these defendants, upon information and belief, and as they are advised, allege that, if it be assumed that the said paper writings were duly made, executed, and published by the said Cornelia M. Stewart as testamentary instruments, with adequate testamentary capacity, and if it be assumed that they are not invalid, on the ground of fraud or undue infiuenee, still, all those parts of the said paper writings which purport, or are claimed by the said Henry Hilton, to devise or bequeath to him, in trust, such half part of said residuary estate, or to create or vest in him any trust or trust-estate in respect of the same, or any part thereof, are, upon the face thereof, illegal, invalid, ineffectual, and void, and that all those portions of said paper writings which purport, or are claimed by the said Henry Hilton, to vest in him any power or authority whatsoever in respect of such half part of such residuary estate, are likewise, upon the face thereof, illegal, invalid, ineffectual, and void.] [And, upon information and belief, and as they are advised, these defendants allege that, by reason of the premises, such half part of the said residuary estate, so claimed by the said Henry Hilton, as aforesaid, (even if the said paper writings should be upheld as valid testamentary instruments,) descended and became distributable to, and is now vested in, the heirs at law and next of kin of the said Cornelia M. Stewart, as in the case of intestacy, and is wholly free and clear from any operation, force, or effect of said alleged trust or trust-estate, or of said alleged powers, or any of them, and that said heirs at law are, so far as regards any real estate involved in this action, constituting any portion of such half part of the said.residuary estate, entitled to the same, and the present possession thereof, and the rents and profits of the same, from the time of the said Cornelia M. Stewart’s death, and that said next of kin are, so far as regards any personal property involved in this action, constituting any portion of such half part of said re- ' siduary estate, entitled to distribution of the same, in the due course of the administration and distribution of the said Cornelia M. Stewart’s personal estate.] [Moreover, these defendants, upon their information and belief, and as they are advised, allege that such claims as aforesaid on the part of the said Hilton, as well as the claims of any of the others of the parties to this action, based upon such paper writings purporting to be such will and codicils, or any or either of them, or any part thereof, are also subject, in the first place, so far as concerns the personal property involved in this action, to the final determination of the questions presented for adjudication in the matter of the petition of this defendant, Rosalie Butler, hereinafter more particularly referred to, presented by her to the said surrogate’s court, praying, among other things, that the said probate might be revoked; and the said Hilton’s claims are subject, in the second place, so far as concerns the real property involved in this action, constituting any portion of such half of said residuary estate so as aforesaid claimed by him, to the final determination of questions as to said Hilton’s fraud and undue influence respecting said alleged testamentary instruments of the said Cornelia M. Stewart, presented for adjudication in the action of the defendant, Prescott Hall Butler, in this court, and now pending herein, against the said Hilton and others, hereinafter also more particularly referred to, and that there can properly be no adjudication in this action of the questions involved in said proceeding in the surrogate’s court, or of said questions.involved in said action brought by said Prescott Hall Butler.]” “IX. [These defendants, on their information and belief, admit that the plaintiff and the defendant Charles J. Clinch have respectively an interest in the subject-matter of the action, as heirs at law and next of kin of the said Cornelia M. Stewart.]” The motion was denied, and Hilton appeals.
    Argued before Van Brunt, P. J., and Daniels, J.
    
      Leslie W. Russell and Elihu Root, for appellant. Joseph H. Choate, Treadwell Cleveland, William G. Choate, and. H. W. Divine, for respondents.
   Daniels, J.

The plaintiff is a legatee under the will of Cornelia M. Stewart, deceased. This legacy was given by the third paragraph of the will, amounting to the sum of $250,000. By a third codicil to the will, the testatrix also gave, devised, and bequeathed to her an equal half part of the share of her property and estate previously devised and bequeathed to her nephew, Charles J. Clinch. Under this paragraph of the codicil, she became entitled to an equal undivided one-quarter of the residuary estate of the testatrix. This action has been brought by her to maintain and enforce the provisions of the will and codicils made in her favor. And in support of it she has alleged that the defendant Henry Hilton, by means of undue influence and fraudulent representations upon his part, induced the testatrix to transfer and convey to him the principal portion of the residuary estate, thereby diminishing the quantity which she would otherwise have received under this devise and bequest. And by way of relief in this action she has demanded that the transfer and conveyances shall be set aside, and the defendant Henry Hilton required to account for her share in this property, the same as though the transfer and conveyances had not been made. The answers included in the motion to strike out portions of them were served by other relatives of the testatrix, who were made parties to the action, as persons interested and to be affected by its disposition. By their'answers they have set forth and alleged that the will, and the codicils following it, were obtained from the testatrix by the defendant Henry Hilton through the use on his part of undue influence over her, and by fraudulent representations made to her; and on that account both the will and the codicils are objected to as being invalid and void against these defendants. The answers containing these allegations have been served upon the attorney for the defendant Henry Hilton; and it was in his behalf that the motion was made to strike out these allegations, together with argumentative portions of the answers, added for the purpose of sustaining them. The motion is resisted under the authority of sections 452 and 521 of the Code of Civil Procedure. By these sections, the court has been empowered, not only to make a complete determination of the action between tile plaintiff and the defendants, but, in addition to that, also to determine the ultimate rights of two or more defendants as between themselves. But neither these sections of the Code, nor any others, have been so far extended as to permit the defendants, by their answers, to add to the case a further disconnected and independent cause of action from that stated and set forth in the complaint. They were intended to follow and preserve the powers exercised by courts of equity in actions brought for their determination, as that was permitted and sanctioned by the law and practice previously existing; and by that practice, as well as by the language of these sections, the rights of the defendants to be determined between themselves must necessarily be those arising out of, or connected with, or resulting from, the cause of action set forth and maintained by and in favor of the plaintiff. It is a jurisdiction resulting from the disposition of the case made by the plaintiff, creating or producing rights or obligations in favor of one or more defendants against another or others. And their object is to secure a full and final adjustment of such rights and obligations, by way of completely determining the entire controversy arising out of the plaintiff’s action. This was the view followed by the chancellor in Jones v. Grant, 10 Paige, 348. And it was applied and enforced in Kay v. Whittaker, 44 N. Y. 565. And so it was, also, in Lansing v. Hadsall, 26 Hun, 619; Trust Co. v. Railroad Co., 18 Abb. N. C. 368; and Derham v. Lee, 87 N. Y. 599, 604. The facts set forth in the portions of the answers to which the motion was directed, in no manner were connected with,, or grew out of, or resulted from, the case stated by the plaintiff in her complaint. But they were alleged and stated, to set forth an 'entirely new cause of action, subverting that alleged and relied upon by the plaintiff, and intended and designed to set aside the will and all the codicils, on which she depended to support her right to maintain her suit. If the defendants were entitled to the relief, in this respect, demanded in their favor, the facts upon which it depended would constitute a new and distinct right of action, forming the basis of another and independent suit in their favor, and not a defense to the plaintiff’s action.

Section 1866 of the Code of Civil Procedure has provided, in certain specified cases, for the maintenance of an action to test the validity of a testamentary disposition of real property within this state, or of an interest therein. This, it has declared, may be done in like manner as an action to determine the validity of a deed made for the conveyance of land. But this section has been considered not to include cases of this description, (Anderson v. Appleton, 48 Hun, 534;) and it has not allowed or provided for a defense by way of answer, to include this subject; but the right, when that shall exist, is to be asserted and prosecuted only by means of an action. And while, by sections 500, 501, and 502, causes of action may be brought into the litigation by way of answer, as counter-claims, the provisions made for this purpose are not so broad as to include a cause of action within this section, or of this description; for the causes of action which may be brought into the litigation by way of counter-claim are restricted to such as arise out of the contract or transaction set forth in the complaint, or are connected with the subject of the action, or a claim upon a contract, alleged by way of couüter-claim, when the action itself is on contract. This defense falls within neither of these provisions. It certainly is not a caus.e of action on a contract, neither is it a cause of action arising out of the transactions set forth in the complaint as the foundation of the plaintiff’s demand, nor connected with the subject of that action; but, on the contrary, as the allegations are contained in the answers, it. is proposed, under them, to subvert the action of the plaintiff entirely, and to secure relief upon a distinct and entirely independent state of facts. They are, accordingly, irrelevant to the case, as it has • been brought before the court. The Code also, as did the enactments of the preceding law, has vested in the surrogate of the county the jurisdiction to take proof of the execution, and determine the validity of wills, (Code Civil Proc. § 2472;) and his determination establishing the validity of a last will has, by sections 2626, 2627, been made conclusive, as long as it shall remain unreversed, of the validity of the will, so far as it may affect personal property, and presumptive evidence so far as it may affect real estate. And the only manner in which this effect can be avoided, where the decree shall remain unreversed, is to secure a further hearing before the surrogate, under the authority of article 2, tit. 3, c. 18, (§§ 2647-2653,) Code Civil Proc. Where that shall not be done, then the effect given to the proof and establishment of the will by the surrogate will be left in full force. This jurisdiction of the surrogate, like that vested in the ecclesiastical court of England over the personal estate, and of the courts of common law over the real estate, of the testator, has been considered, and held to be exclusive, furnishing and supplying the only mode in which the validity of a last will can be tried and determined, subject to whatever exception has now been supplied by section 1866 of the Code of Civil Procedure. In the exercise of the authority conferred upon the surrogate by the statutes of this state, it has been made'his province to try the objections to this will and these codicils, set forth in this manner by the answers of these defendants. And the objections are there being tried, as the fact has been made to appear, through the exercise by the surrogate of the power of rehearing vested in him by sections of the Code to which reference has already been made. • Ample authority, also, has been secured for the continuance of the litigation in this manner to a final conclusion in the court of last resort. And if the facts of.the will and codicils being obtained by undue influence, and by fraudulent representations, are to be litigated, and the instruments assailed as invalid, on this account, it must, in the first instance, be done in the surrogate’s court. This subject was examined and considered in Clark v. Fisher, 1 Paige, 171, where, as the result of the authorities, the chancellor declared that, “surrogates having exclusive jurisdiction in relation to the proof of wills of personal property, they must of necessity determine all questions of fraud, imposition, and undue influence in procuring such wills.” Id. 176. And the law was so considered to be settled, upon a very thorough reference to the authorities, in Gaines v. Chew, 2 How. 619. And the principle also has the sanction of Kerrick v. Bransby, 7 Brown, Parl. Cas. 437, and Allen v. M'Pherson, 1 H. L. Cas. 191. And its correctness was not gainsaid by anything which was held in Boyse v. Rossborough, 6 H. L. Cas. 2; for there the action was maintained in equity, only because of legal obstacles standing in the way of the suit, which would have been a defense to an action at law, but which a court of equity was entitled to control, as it did, to secure an immediate determination of the controverted rights of the parties. The allegations contained in the answers which have been made the subject of objection are not entitled to be so included, because of their violation, also, of this well-settled legal principle. They have set forth subject-matters not capable of being tried as any part of the issues between these parties. These allegations are voluminous and extended, and, if they are retained in Jhe answers, will necessarily impose upon the defendant, who has moved to strike them out, the obligation, at least, of being ready to meet them, either by contesting the facts, or upon the presentation of the law at the trial; and that he should not be obliged to do. If they formed any color-able ground upon which relief could be secured by these defendants against the defendant Henry Hilton, then, of course, they should be retained in the pleading. Walter v. Fowler, 85 N. Y. 621; Hagerty v. Andrews, 94 N. Y. 195. But they do not; for, upon each of the objections which have been considered, they manifestly have no place, legally, in the answers presented by these defendants. And when that is the case, and they are extended and voluminous, as they are in these answers, presenting subjects for trial which cannot be considered as a part of this litigation, they should be stricken out, as irrelevant and redundant. That is the only remedy afforded, for the answers of these defendants "cannot be made the subject of demurrers by the defendant Henry Hilton. This direction will in no manner contravene what was decided in Town of Essex v. Railroad Co., 8 Hun, 361; for it was there held that the court could reasonably strike out any matter which was plainly, and on the first glance, impertinent; and these allegations are of this description. This disposition is also sanctioned by the case of Molony v. Dows, 15 How. Pr. 261, in which the court, for like reasons, struck out portions of the pleading which, in that instance, was under its consideration. When other facts have been alleged which may be relevant to the case or defenses upon other grounds, they, of course, should be retained in the answers. This seems to be the case as to the concluding part of subdivision 6 of the answer of Rosalie and Virginia Butler, and of so much of subdivision 7 as is proposed to be stricken out; and also of paragraph 9 of the answer, containing an admission of a matter of fact. The same portions of the other answers should also be allowed to stand; but all the allegations of fraud and undue influence in obtaining the will and the codicils, stating facts of this description by way of defense to the plaintiff’s action, should be stricken from the answers. This, however, will not include the demands for judgment; for the parties, whether plaintiff or defendant, are at liberty to demand what they may please, to insert in their pleadings, having any pertinence whatever to the litigation before the court. And the costs of the appeal, as the application was too broadly made, should, with the disbursements, abide the event of the litigation. The order to be entered will only be settled upon notice being first given to these other defendants.

Van Brunt, P. J., concurs.  