
    MARVIN against MARVIN.
    
      [No. 2 of this name.]
    
    
      Court of Appeals,
    February, 1871.
    New Trial.—Action to Test Validity oe Devise oe Real Estate.—Ejectment.—New Trial in Equity.
    A proceeding instituted by an heir, under Laws of 1853, p. 526, ch. 238,-—which provides for an action to test the validity of an alleged devise of real estate, —is not an action of ejectment so as to entitle the unsuccessful party to a new trial as a matter of right, under the provisions of 2 Rev. Stat., 309, § 37.
    A proceeding under the first section of that act has none of the qualities or consequences of an ejectment, and determines nothing as to the possession-of or title to the land, except as the title may be affected by the devise in question.
    A proceeding under the second section, has no more effect in determining the question of title, than one under the first section, and can only be brought when the ancestor died holding and in possession of the real estate.
    The unsuccessful party, in equity, never had the right to a new trial as a matter of right, but a second trial was in the discretion of the court, and was granted whenever the ends of justice required it.
    Appeal from an order.
    This action was brought by George L. Marvin and wife, as heirs at law of Sarah L. Marvin, against Le Grand Marvin and others, executors and legatees under her will, for the partition of the real estate of which she died seized. The action was brought pursuant to Laws of 1853, p. 526, ch. 238, § 2, which provides that: “Any heir or heirs claiming lands, tenements or hereditaments by descent, from an ancestor who died holding and being in possession of the same (whether such heir or heirs be in possession or not), may prosecute for the partition thereof, notwithstanding any apparent devise by such ancestor, and any possession held under the same devise, provided that such heir or heirs shall allege and establish in the same suit, action or proceeding, that such apparent devise is void.” The complaint alleged, 1. Seizin and death of Sarah L. Marvin, leaving George L. Marvin and Le Grand Marvin her sole heirs at law. 2. That Le Grand Marvin had presented for probate, a paper (which was set forth), purporting to be the last will and testament of Mrs. Marvin, under which the defendants claimed. That in fact it was not duly executed by her, and that her execution thereof was obtained by fraud.
    It contained no allegation of ouster.
    The relief demanded was that the pretended devise be declared null and void ; that the defendants be enjoined from setting up said devise, and that the premises be partitioned between the heirs at law. The plaintiff obtained a judgment, which was affirmed at general term, and by the court of appeals.
    After this, the defendants moved for a second trial of the action, under the statute for granting new trials in actions of ejectment (2 Rev. Stat., 309, § 37). The motion was denied, and the order denying the motion affirmed by the court at general term, whereupon the defendants appealed to this court.
    
      E. B. Vedder, for defendants, appellants.
    
      Sherman S. Rogers, for plaintiffs, respondents.
    I. This is not an action of ejectment, but an equitable action to remove a cloud on title and for partition. It is triable by a court, with whom it is discretionary to award issues to. be tried by a jury, and which may grant new trials until the conscience of the court be satisfied. The technical rules of law do not apply. Although the same questions of title may be involved as in an action of ejectment, yet the interests of justice have no such need for a second trial as might be likely to exist in a purely legal action for ejectment.
    IT. The question here, was decided in Shumway v. Shumway, 1 Lans., 474; affirmed in 42 N. Y., 143.
   By the Court.—Grover, J.

The only question arising upon the appeal in the present case is whether a proceeding, instituted by the heir to test the validity of dn alleged devise of real estate that would, if invalid, have descended to him, pursuant to the provisions of the act passed in 1853 (Laws of 1853, p. 526, ch. 238), is an action of ejectment according to the provisions of 2 Rev. Stat., p. 303, ch. 5, tit. 1, so as to entitle the unsuccessful party to a new trial as matter of right, upon payment of costs, &c., by the provisions of section 37 of the act (2 Rev. Stat. 309, § 37).

The affirmative of this proposition has been ably and ingeniously argued by the counsel for the appellant, but we think that an examination of the act of 1853 will show that his position cannot be sustained.

The action of ejectment, as regulated by the Revised Statutes, was an action to redress the injury of a party, who was entitled to the possession of real estate, which was wrongfully withheld from him, and to determine finally the title of adverse claimants thereto. But for the provisions of the statute, giving expressly to the unsuccessful party, as a matter of right, a second trial, by a compliance therewith, and a third in the discretion of the court, his rights would be concluded by the verdict and judgment upon a single trial.

Section 1 of the act of 1853, provides, that the validity of any actual or alleged devise or will of real estate may be determined by the supreme court, in a proper action for that purpose, in like manner as the validity of any deed, conveying or purporting to convey lands, might be determined by such court, and thereupon, any party may be enjoined from setting up or impeaching such devise, as justice may require; that issues of fact may be tried by jury or the court, as the nature of the case may require, and the court shall direct. It is manifest that proceedings under this sec-tion have none of the qualities or consequences of an ejectment. By them nothing is determined, as to the possession or title to the land, except as the title may be affected by the devise in question. It may well be that an heir who has proceeded under this section, and obtained a judgment, declaring the devise invalid, may never be able to recover the land, from inability to show a valid title in his ancestor. All that he has accomplished, is to remove the obstacle that the alleged devise might interpose. The counsel is right in his position, that the question,—whether devised or not,—was before the statute cognizable by courts of law only (Smith v. Carll, 5 Johns. Ch., 118; 1 Story Eq. Jur., § 238). It follows that under the provisions of art. 1, § 2, of the Constitution of the State, that issues of fact joined in proceedings under the statute, must be tried by jury, unless the parties assent to a different mode.

It remains to consider whether when, as in the present case, the proceedings are under section 2 of the act, the effect differs in any, and if so, in what, respect, from those under section 1. It will be seen that section 2 is unavailable, unless the ancestor died holding, and in possession of, the real estate claimed by the heir It is evident that, in such a case, if the interest claimed by the heir is an undivided one, held in common with others, the only obstacle to a partition is the alleged devise, and that, upon this being determined to be invalid, his right to apply to a court of equity for partition is established. Hence it is, that section 2 provides for a partition in this class of cases, in the same action in which the devise is adjudged invalid.

In proceedings under this section, no question • affecting the title to the land, other than the alleged devise, is or can be determined, any more than in proceedings under the first. The proceedings under neither can be made to operate as an ejectment. The unsucessful party never had the right in equity to a new trial, as matter of right, when the verdict found against him affected his title to real estate. A second trial was in the discretion of the court, and would be granted, whenever, in the opinion of the court, the ends of justice required it (Van Alst v. Hunter, 5 Johns. Ch., 148).

The order appealed from must be affirmed, with costs.

Order affirmed, with costs.  