
    Catharine C. Ellerson, App’lt, v. Elizabeth P. Westcott et al., Resp’ts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July 5, 1895.)
    
    1 Pleadings — Amendment—Partition.
    In an action for partition of land held by one of the defendants under a. devise alleged to be void, the complaint may be so amended as to allege that such defendant, for the purpose of realizing under the will, willfully caused and procured the death of the testator, and is not, therefore, entitled to take under the will.
    2. Same.
    The fact that some of the other defendants may not be interested in this question is not an answer to the application for the amendment.
    3. Partition — Devise—Torn.
    Under section 1537 of the Code, the right of a devisee under a will may be attacked in an action for partition, on the ground that he caused the death of the testator for the purpose of realizing under the will, though he has not been criminally tried or charged with producing such death.
    Appeal from an order, denying a motion for leave to serve an amended complaint.
    
      A. D. Wales, for app’lt; Gilbert & Andrus, for resp’ts Westcott and Granung.
   Merwin, J.

— In the complaint it is alleged that on the 9th May, 1891, Munroe Westcott, of Oneonta, N. Y., died, being then seised in fee of a large quantity of real estate, which is in the complaint fully described; that the plaintiff is the sister of said Westcott, and that she and certain of the defendants, who are the children or descendants of another sister, constitute all of his heirs and next to kin; that, soon after his death, a paper purporting to be his last will and testament was produced by the defendant Elizabeth P. Westcott, in and by which the testator, after devising three pieces of real estate to certain parties, devised the use of all the rest of his-real estate to Elizabeth P. Westcott as long as she should live, and at death directed that all the property left should be under the control of the defendant Ganung for the purpose of establishing and founding a hospital at Oneonta; that the will was afterwards admitted to probate by the surrogate of the county of Otsego, and letters testamentary thereon issued to the defendants Westcott and Ganung, two of the executors therein named, and that they have taken possession and assumed the control of the real and personal estate, claiming the right to do so as executors, and claiming rights and ownership in the property individually as legatees and devisees under the provisions of said instruments; that the paper so admitted to probate is not the last will of the deceased, was not executed in the form and manner required by law, and the deceased, by reason of mental infirmity, was incompetent to make a will, and the same was procured by undue influence and fraud; that the alleged will is not a valid instrument, but is void for uncertainty, and also in that it unlawfully suspends the power of alienation, and attempts to create an invalid trust, and that none of the persons named as devisees acquired any rights in the property by virtue thereof; that the plaintiff, as heir at law of the deceased, is seised in fee simple of an undivided one-half of the real estate, and the other heirs at law are seised of the balance, in the manner therein specified. Judgment is asked that the alleged will be declared null and void, that the plaintiff and the other heirs at law be declared the lawful owners of the real property, and that partition be made. The amendment asked for consisted in inserting just before the demand for judgment an allegation that the defendant Elizabeth P. Westcott willfully, wrongfully, and unlawfully, for the purpose of realizing under the alleged will, by the use of drugs, medicines, poisons, or other means, the exact particulars of which are unknown to plaintiff, caused and procured the death of said Munroe Westcott, and therefore is not entitled to take under the will. The question here is whether the plaintiff has, in any event, the right to have the issue presented by the amendment tried, and disposed of in this action. If -the facts alleged in the amendment are true, the plaintiff, in the proper forum, has, according co the law laid down in Riggs v. Palmer, 115 N. Y. 506; 26 St Rep. 198, the right to have it adjudged that the devise to Mrs. Westcott is ineffective to pass to her any title, and that the plaintiff and the other heirs at law are so far as any claim of Mrs. Westcott under the will is concerned, the true owners of the real estate left by the testator. That was the form of the adjudication in the Biggs Case, which involved precisely the issue presented here, ft follows, therefore, that the ownership and title of the property cannot be fully determined until the issue in question is disposed of.

Section 1537 of the Code is as follows:

“ A person claiming to be entitled, as a joint tenant or a tenant in common, by reason of his 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.”

Section 1543 is as follows:

“ The title or interest of the plaintiff in the property, as stated in the complaint, may be controverted by the answer. The title or interest of any defendant in the property, as stated in the complaint, may also be controverted by his answer, or the answer of any other defendant; and the title or interest of any defendant, as stated in his answer, may be controverted by the answer of any other defendant. A defendant, thus controverting the title or interest of a co-defendant, must comply with section five hundred and twenty-one of this act. The issues, joined as prescribed in this section, must be tried and determined in the action.”

By section 1544 provision is made for a trial by jury of an issue of fact joined in the action.

Under these provisions it has been said that all questions arising between the parties in respect to the property, as to their respective titles and rights of possession, may be determined. Weston v. Stoddard, 137 N. Y. 119; 50 St. Rep. 169; Collins v. Collins, 36 id. 591; affirmed, 131 N. Y. 648; Shannon v. Pickell, 2 St. Rep. 160; Throop’s notes to article 2, tit. 1, chap. 14, of the Code. This would seem to be a rational view of the provisions of the Code. As said in the Weslon Case (page 128, 137 N. Y., and 50 St. Rep. 169): “Circuity of procedure and a multiplicity of suits are thereby avoided, and these were the primary objects which the Code system of practice had in view.” In the Weston Case it was held that a disseised cotenant might bring the action. The action may be maintained notwithstanding an adverse possession. Hewlett v. Wood, 1 Hun, 479; 62 N. Y. 78; Malaney v. Cronin, 44 Hun, 270. In the Malaney Case an issue was whether the will was procured by undue influence. In the Hewlett Case (see 3 Hun, 736; 1 Hun, 478) the issue was over the mental capacity of the testator, as well as undue influence. A devise to one who is incompetent to take is void. Hall v. Hall, 13 Hun, 309. In the case cited it was held that under section 2 of chapter 238 of the Laws of 1853, which was similar to section 1537 of the Code, an action of petition could be brought by the heirs of a testator who had devised the property in controversy to one who was incompetent to take by devise because of alienage, and the question as to such incompetency be disposed of in the action. The plaintiff in the present case in her original complaint alleges generally that she and the other heirs at law of the deceased are the owners in fee of the property; that the apparent devise is void, for the reason that the will was not properly executed, and was for the free act of a competent testator. It is also alleged that the residuary devise to Mrs. Granung is void upon its face for certain specified reasons. By the amendment the plaintiff seeks to further allege that the devise of the life estate to Mrs. Wescott is also void by reason of her incapacity to take, the cause of which is set forth. With this amendment the allegations reach the entire ownership as claimed under the will. So that, under the complaint as amended, the validity of the devise of the entire title is attacked on two grounds : First, for reasons going to the whole will; and secondly, for the reasons affecting only the real estate in question. Under Code, section 1537, the plaintiff must allege and establish that the apparent devise is void. There is no limitation as to the causes or reasons that may be alleged. There is prohibition against alleging all the grounds that may be claimed to exist. On the contrary, it would seem to be necessary that all should be alleged that tile party desires at any time to take advantage of. The final judgment is conclusive (section 1157), and in case of sale it effectually bars each of the parties who is not a purchaser at the sale from all right, title, and interest in the property sold (section. 1577).

It is suggested that the'amendment involves a cause of action not triable in an action of partition. It is certainly novel in its-character, but, under the decision of the Riggs Case, it involves simply the question of the capacity of the party to take and is to be treated as any other question of incapacity. The cause of action here is for partition, and as incident to it, the plaintiff has the right to remove the obstructions or clouds caused by the apparent devise. Henderson v. Henderson, 44 Hun, 420 ; 9 St. Rep. 356. It is said that Mrs. Westcott has not been criminally tried or charged, but her incapacity to take does not under the Riggs Case depend upon her trial or conviction, but upon the existence of the fact itself. The fact that some of the other parties may not be interested in this question is not an answer to the application for amendment. Very clearly the Code contemplated that the right of different defendants may not stand upon the same basis.

Sections 1538, 1543; Townsend v. Bogert, 126 N. Y. 370; 37 St. Rep. 488.

We are therefore of the opinion that neither of the grounds specified in the order appealed from as the grounds upon which the motion was denied is sustainable. The court had the power to allow the plaintiff to allege another ground on which the devise to Mrs. Westcott was void. The amendment was, under the circumstences of the case, somewhat in the discretion of the court, and, as that has not been exercised, the order should be reversed,, and the proceedings remitted to the special term for further hearing.

Order reversed, with $10 costs and disbursements, and proceedings remitted to the special term for further hearing.

All concur.  