
    In the Matter of the Will of Martha K. Peaslee, Deceased.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 17, 1893.)
    
    1. Will—Revocation of fbobate.
    A legatee, who has received payments on account oí his legacy, cannot maintain a proceeding to revoke probate of the will without refunding such payments.
    3. Same—Jurisdiction.
    The surrogate has jurisdiction, under § 3647 of the Code, to determine whether the petitioner is within the statute.
    Appeal from an order of the surrogate's court denying application for the revocation of the probate of a will,
    
      Arnoux, Bitch & Woodford (William H. Arnoux and John B. MacArthur, of counsel), for app’lt; Bobert Hunter Me Qrath, Jr., and Daniel Q. Bollins,-tor resp’ts.
   Parker, J.

By a decree of the surrogate’s court of Hew York, dated January 25, 1892, there was admitted to probate an instrument adjudged to be the last will and testament ef Martha K. Peaslee. It contained a bequest to Frances M. Peaslee, a daughter of the testatrix, on account of which the executors made payments to her on the dates and in the amounts following: January 28, 1892, $2,500; May 24, 1892, $4,500, in all, $7,000. Subsequently, and within the time allowed by law, Frances M. Peaslee filed a petition in the surrogate’s court of New York, praying for a revocation of the probate of such will, Citations were thereupon issued. The executors, appearing in response thereto, answered that they had made the payments above referred to; that the petitioner had not refunded, nor offered- to refund, the same; and demanded a dismissal of the proceeding.

It is a well settled, proposition in law as well as in equity that he who accepts and retains a benefit under an instrument, whether deed, will, or other writing, is held to have adopted the whole, and to have renounced every right inconsistent with it. The rule has found expression in many actions, and with widely differing facts. A few of them only will be referred to. In Chipman v. Montgomery, 63 N. Y., 234, which was an action in the supreme court to obtain a judicial construction of a will, and for an accounting, Judge Allen, speaking for the court, said: “ Two of the plaintiffs have received, in whole or in part, the- legacies given them by the will, and, having accepted the benefit of the provision made for them, cannot be heard in opposition to other parts of the instrument, except by proof of circumstances showing that they had not intelligently elected to take under the will, rather than in opposition to it, and a return of all that ‘has been received by them.’ ” ' And he quoted with approval Lord Redesdale’s decision in Birmingham v. Kirwan, 2 Schoales & L., 444, that this rnle of election is applicable to every -species of instrument, whether deed or will, and to be a rule of law as well as equity. The rule is also asserted in Havens v. Sackett, 15 N. Y., 365.

In Mills v. Hoffman, 92 N. Y., 181, which was an appeal from a decree of the surrogate’s court compelling an administrator to account, the objection overruled by that court was that the petitioner was barred, because of an entry of judgment, in which she was a party defendant, although an infant, and the subsequent distribution of the estate in pursuance of the judgment, by which the moneys came into the hands of her guardian, and upon her majority to her. After this latter event, the judgment was vacated and set aside as to her, on the ground that the appointment of a guardian ad litem to represent her had been irregular, and the court of appeals held that she was estopped from controverting in the surrogate’s court the judgment under which she had received benefits. In re Soule's Will (Surr.), 3 N. Y. Supp., 259; 11 St. Rep., 695, the right of a legatee who had received moneys under a will to claim revocation of probate without making full restitution to the executors was denied. Numerous cases have arisen under wills where this principle has been applied. Hamblett v. Hamblett, 6 N. H., 333 ; Van Duyne v. Van Duyne, 14 N. J. Eq. 49 ; Weeks v. Patten, 18 Me., 42 ; Smith v. Guild, 34 Me., 443; Hyde v. Baldwin, 17 Pick., 303; Smith v. Smith, 14 Gray, 532; Bell v. Armstrong, 1 Addams’ Ecc., 365; Braham v. Burchell, 3 Addams’ Ecc., 243.

The learned counsel for the appellant, while citing no authorities asserting a contrary proposition, has carefully analyzed and elaborately discussed nearly all the cases we have cited, in order to make it appear that they are distinguishable from the case at bar. In their facts they are different from this case, and they differ from each other,but they all tend to make good the assertion which may be found running through the books, that he who receives money or property or a benefit of any kind under an instrument, whatever its character, or his relation to the maker of it, cannot question the instrument, in whole or in part. But the appellant urges that the reason for the rule does not apply in this case, and, therefore, the rule should not obtain. Here he says no injury can result to the executors, or any one else, because the petitioner is permitted to contest the will while retaining the $7,000' which she received from the executors, because, if the will be set aside, she, as one of the next of kin, will be entitled to receive a larger sum of money than $7,000, and, therefore, the executors can be amply protected by the surrogate. It may be true that, if the contest should proceed, it would so turn out; but of that we are not assured. It does not appear that, should the petitioner be successful in her contest, as a result her mother’s intestacy will be established. There may be other and prior wills in existence, the validity of one of which may be established, with the possible result that the petitioner will not receive thereunder a legacy sufficient in amount to make good the advancement to her by these executors. Certainly, the contrary cannot be safely assumed. The fact, that the petitioner received this money, and expended it before becoming aware of the facts which encourage her to enter upon a contest of the will, may, perhaps, be unfortunate for her. If misfortune it be, it arises, of course, from the necessities which induced her to expend the money. Y^here a person asks that a rule be not applied, on the ground that the reason upon which it is founded is not present, the burden rests upon him to establish clearly the facts which he relies on to support his contention. The petitioner took the money and used it, and until she puts the parties in a position where, whatever the result may be, no one can be the .loser because of the payments originally made to her, she is not in a situation to attack the will.

But the appellant urges that, granting the existence of the principle contended for, and its applicability to the petitioner’s situation, still the surrogate’s court, not being a court of equity, was without authority to determine the question. Section 2674 of the Code, which provides who may petition for the revocation of a will, confers, we think, upon the surrogate's court, the authority to pass on the proposition presented here. It does not provide that any one of the next of kin may, within one year, petition for a revocation of the probate, in which event the proceedings described in that and the following sections shall be had. On the contrary, it provides that “a person interested in the estate of the decedent may * * * petition. This clearly means that the person making the application must have a substantial interest in the result at the time he files his petition. The fact that he is one of the next of kin is not sufficient, if, by assignment or otherwise, he has disabled himself from sharing in the estate should the will be revoked. The aim of the statute is not to encourage vexatious contests, but to secure to a party who, but for the will, would receive a larger share of the estate than bequeathed to him by it, a year in which to ascertain all the facts surrounding its execution, and to determine whether to assume the responsibility of making a contest. In order to avail himself of the privilege thus afforded, he must be in such a position that he is “a person interested in the estate.’1 That such is the purpose of the statute seems to be apparent from the mere reading of the provision; but, if doubt remains, it must certainly give way after a comparison of the section with the provisions of the Revised Statutes which it stands in the place of, 3 Rev. St.. (6th Ed.) p. 61, §§ 27-29. Those sections provide that “any of the next of kin to the testator may, at any time within one year after such probate, contest the same.” It will be observed there was no restriction placed upon the next of kin whatever. According to its terms, one of the next of kin, although he might have disposed of his interest in the estate, or by other acts placed himself in such a position that he could not share therein, might still carry on a contest, which would greatly annoy, and perhaps result in considerable injustice to, others. The change in the statute was intended, doubtless, to do away with the opportunity thus afforded for mischievous contests. Its beneficial features were retained, the right to make application for a revocation of the will being limited to those only having a present interest in the estate; necessarily, therefore, the statute confers upon the surrogate the right to determine, before preceding with a contest, whether the person presenting the petition is “ a person interested in the estate of the decedent.3’' If from the facts before him it appears, as it did in this case, that under well-settled rules of law the petitioner is es- . topped from claiming in hostility to the will, then it necessarily follows that he must determine that the petitioner cannot be allowed to proceed further in the direction of revocation because of a want of interest in the estate of the decedent.

The order should be affirmed, with costs and printing disbursements.  