
    Sarah A. McGrane, Pl’ff, v. James Kennedy et al., Def’t.
    
      (New York Common Pleas, General Term
    
    
      Filed June 2, 1890.)
    
    Vendor and purchaser — Defective title.
    Plaintiff agree A to sell to defendants certain lots on Thirty-eighth stree claiming title to the same under a will by which the testator devised to h wife all his title to certain lots on Thirty-seventh street which he had a quired from Chatfield H. Smith. The case contained an admission th; there does not appear of record any conveyance to testator of premises c Thirty-seventh street, and also an admission that Chatfield H. Smith, : proceedings to probate said will, testified that he conveyed to testator re property on Thirty-eighth street; that he never sold him any other re property, and that he was the only person in New York city of that non that he knew. Held, that the admissions did not suffice to show that test tor might not have owned real property on Thirty-seventh street, nor co cede the truth of Smith’s testimony; nor would the testimony of Smith the probate proceeding estop the heirs of testator in any action to recov real property, and in the absence of such estoppel the title was not so fr from doubt as to justify a decree of specific performance.
    Controversy submitted without action, to obtain the jud ment of this court directing or refusing to direct the specific pe formance of a contract for the sale and purchase of real proper situate in the city of New York.
    
      John Hardy, for pl’ff ; Page & Taft, for def’ts.
   Bischoff, J.

A careful examination of the case agreed up< and submitted by the parties to this action shows that one Jam Nelson, at the date of his last will and testament, April 25, 18E and at the time of his death, March 28, 1857, was the owner certain real property, situate on West Thirty-eighth street in t city of New York, being the same premises described in the co tract of sale forming a part of the case submitted; that the 1e will and testament of said James Nelson upon due citation to t testator’s heirs at law was duly admitted to probate by the sun gate of the city and county of New York on. the 5th day of Jur 1858. and contained the following devise to his widow, Mary Elizabeth Nelson, viz.:

Second. I give, devise and bequeath to my wife, Mary ilizabeth Nelson, all the right, title and interest I possess in and o certain lots in Thirty-seventh street, in . the city of New ark, which I acquired from Ghatfield H. Smith, of the value of ve thousand dollars ($5,000).”

It is through this devise and several mesne conveyances that he plaintiff claims title to the premises agreed to be sold by ;ier to the defendants. Defendants declined to perform the con,ract on their part, and refused to accept the plaintiff’s deed, aleging as the ground for such refusal that the premises agreed to e sold were not the premises devised to Mary Elizabeth Nelson. From the plaintiff’s brief accompanying the case submitted, it ppears that the facts extrinsic to the last will and testament of "ames Nelson, upon which the plaintiff relies in support of her jitle, are that at the time of making his last will and testament, ,nd at the time of his death, James Nelson was seized of the diirty-eighth street premises, which had been conveyed to him on ¡he 19th day of February, 1856, by one Ghatfield H. Smith, and at said Ghatfield H. Smith had never conveyed any other real iroperty in the city of New York to the testator. And upon ese alleged extrinsic facts the plaintiff contends that it was the tention of the testator by the aforesaid devise to Mary Elizaeth Nelson to devise to her the Thirty-eighth street premises, d that the words Thirty-seventh street in the devise must be jeemed to be an immaterial error in the description of the said ¡remises.

If the case agreed upon and submitted contained an explicit mission of the alleged extrinsic facts relied upon by the plaint-no difficulty would arise in the way of a judicial determinan of the question then presented, but in the absence of such an mission the court will be compelled to sustain the defendants’ iusal to perform the contract on their part and to accept the led tendered by the plaintiff. The admission that there does t appear of record any conveyance to the testator of premises Thirty-seventh street is of itself not sufficient to warrant the >urt in assuming that James Nelson, the testator, was not seized real property on Thirty-seventh street, the title to which he |av have held under an unrecorded instrument.

It is true that there appears in the case agreed upon an admisn that Ghatfield II. Smith, in the proceedings relative to the abate of the last will and testament of James Nelson, testified ¡at he conveyed to the testator certain real property on 'Thirty;htk street, that he never sold him any other real property, and t he was the only person in the city of New York named Chat-lid H. Smith of whom he knew. But this admission does not dude a concession of the truth of Smith’s testimony. Neither it be successfully claimed that the testimony of Mr. Smith, proceedings to obtain the probate of the last will and testament James Nelson, has any binding force or effect, or is controlling on the heirs-at-law of James Nelson in any action or proceedings which may be instituted by them to recover real property the title to which they may claim through him.

There is no provision of law or rule of evidence which woulc justify a contention that the testimony of a partitular witness ir an action or proceeding to which some of the parties to anothe action or proceeding were parties is conclusive upon them in sucl last mentioned action or proceeding brought for a different pur pose and against different parties. It is the adjudication by judg ment or decree which operates as an estoppel of record upon' al the parties to the action or proceeding wherein such an adjudi cation was made. The proceeding brought to obtain the probate o the last will and testament of James Nelson had for its sole objec the establishment of the validity of the paper propounded. It i hot the province of the surrogate in probate proceedings to detei mine the effect of a last will and testament with the aid of ex trinsic facts, when the testamentary disposition of the testator’ property is clear and explicit and does not trespass upon any lega restraint; and it does not appear from the case submitted that th surrogate by the decree establishing the validity of the said wil undertook to do further.

Eliminating from the case the admission that Chatfield I Smith, in the probate proceedings, testified as stated, no facts n main which could serve to indicate that it was the intention c James Nelson, the testator, to devise to his widow, Mary Eliz; beth "Nelson, any property other than that particularly describe in the devise itself; 'to wit, property on Thirty-seventh street, i the city of New York

The statement of facts agreed upon by the parties to this actio is therefore entirely barren of any admission of facts or circun , stances from which it can be successfully contended that the heir ' at-law of James Nelson are concluded by estoppel of record, r suiting either from their voluntary act or the judgment or dem in a judicial proceeding to which they were properly made pa ties, from asserting' their claim to property of the testator whit was not in express terms bequeathed or devised to others. In tl absence of such estoppel of the heirs-at-law of said James Nelso: the plaintiff’s title to the Thirty-eighth street premises, agreed ■ be sold by her to the defendants, cannot be said to be so free fro. doubt as to justify a direction by this court that the defendan specifically perform the contract on their part, upon tender performance by the plaintiff. Owing to the absence from tl case submitted of the extrinsic facts relied upon by the plaint: in support of her title as hereinbefore explained, the court is co strained to answer the question propounded by the parties here in the negative, and judgment must therefore be awarded to tl defendants'and against the plaintiff, for the sum of $555 and i terest from the 17th day of October, 1889, that being the amou paid by them on account of the purchase money, and seventy-fi dollars damages accruing to defendants from plaintiff’s inabili to perform the contract on her part, together with the costs ai disbursements of this action.

Larremore, Ch., J., concurs.  