
    John I. Wells, Appellant, v. Anna R. Betts, Respondent.
    
      Action by a husband to have the probate of his wife’s will set aside — his right as a, tenant by the curtesy and as a beneficially under a previous will, authorizes it — application of the Code of Civil Procedure, § 2653a — misjoinder of causes of action, — the remedy is by demurrer.
    
    Where a husband and wife, each of whom owns a portion of the farm upon: which they reside, in pursuance of an agreement, execute reciprocal wills devising in each case to the survivor a life interest in the portion of the farm owned "by the testator, and the wife subsequently executes an instrument by which she attempts to devise her real estate to a third person, w’hicli instrument is admitted to probate as her last will and testament, the husband is, by reason of his interest under the first will and by virtue of the interest as tenant by the curtesy which he would have in his wife’s real estate, in case she had died intestate, entitled to maintain an action under section 2653a of the Code of Civil Procedure to cause the validity or invalidity of the probate to be determined under subdivision 2 of that section, which authorizes the maintenance of the action by “any person interested as heir at law, next of kin or otherwise, in any estate, any portion of which is disposed of or affected, or any. portion of which is attempted to he disposed of or affected, by a will of codicil admitted to probate in this State, as provided by the Code of Civil Procedure, within two years prior to the passage of this act.”
    The two-year limitation prescribed in said subdivision was designed to give it a "retroactive effect for the two years prior to its passage, and was not designed to limit its application to wills admitted to probate during that time.
    The objection that, the plaintiff has" united in his complaint a.cause of action: under section 2653a of the Code of Civil Procedure, with one to procure an adjudication that the reciprocal will of the wife was in the nature of an. executed, irrevocable contract, should he taken by demurrer, and if not so taken, the plaintiff will be permitted to pursue his remedy under section 2653a.
    Appeal by the plaintiff, uolin I. Wells, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of St. Lawrence on the 24th day of May, 1898, upon the dismissal of the complaint by direction of the court at the St. Lawrence Trial Term.
    The defendant made a motion to dismiss the complaint upon the pleadings on the grounds:
    (1) That the plaintiff had not capacity to sue under section 2653a. of the Code of Civil Procedure.
    (2) That there are improperly united in the complaint two causes of action; one apparently under section 2653a of the Code to set aside the probate of a will, and the other for a breach of mutual agreements to make wills, for which no relief could be granted in this action.
    The court granted the motion.
    The complaint alleges that- the plaintiff, John I. Wells, in the year 1844, married Huldah G. Wells. The defendant is the sole-surviving child of said marriage; that the plaintiff and the said Huldah G. Wells lived together on a small farm of about one hundred acres until the time of her death, at Madrid, St. Lawrence county, H. Y ; that the title to about forty acres of said' farm was in the wife, Huldah G. Wells; that the dwelling house, barns and other farm buildings were situate on said forty acres and that the remaining portion of said farm belonged to the plaintiff; that at the time of the commencement of the action, the plaintiff was in possession of the farm, including the part belonging to his wife ; that in 1887, the plaintiff and the defendant’s testatrix Huldah G. Wells entered into an agreement to make reciprocal cross wills, each bequeathing and devising to the survivor the use, .occupation and possession of his or her portion of said farm or premises for and during the lifetime of the survivor; that, pursuant to such agreement, plaintiff duly made and executed his last will and testament, devising and bequeathing unto Huldah G. Wells during the period of her natural life the full and free usé, occupation, possession and enjoyment of the premises owned by him, and, at the same time, the said Huldah -G. Wells duly made and executed her will and testament by the- terms of which she devised and bequeathed unto this plaintiff, during the period of his natural life, the full and free use, occupation, possession and enjoyment of the premises which she owned, to wit, the said forty acres ; that said reciprocal wills were in existence at the time of the death of the wife, Huldah G. Wells; that at the time of her death she was the owner of the said forty acres.
    That on or about the 6th day of September, 1894, the said Huldah G. Wells made another will, by which she devised or attempted to devise unto the defendant Anna E. Betts the said forty acres; that at the time -of the execution of said alleged will, to wit, on the 6th day of September, 1894, the said Huldah G. Wells had become feeble in mind and body and of unsound mind and memory and incompetent to make a valid will, and that the defendant Anna E. Betts caused and procured said Huldah G. Wells to make and execute the said instrument by undue influence; that the said Huldah G. Wells died June 16, 1896, and the said will, which was executed on the 6th of September, 1894, was offered for probate in the Surrogate’s Court of St. Lawrence county, and was thereafter, on the 14th day of February, 1898, admitted to probate by the said surrogate ; that the said instrument so admitted to probate was not the last will and testament of the said Huldah G. Wells; that the said Huldah G. Wells was incompetent to make a last will and testament at that time; that the same was not her free act and deed, and that she was not, at that time, of sound mind and memory. And the plaintiff demands judgment that the probate of said will be declared invalid, and that said instrument be declared invalid.
    
      Thomas Spratt and George E. Van Kennen, for the appellant.
    
      Fred J. Merriman and John C. Keeler, for the respondent.
   Landon, J.:

The plaintiff has a capacity to sue, since he rests under no legal disability. The question intended to be raised by the allegation of his incapacity is .whether he is embraced within either class of persons to whom section 2653a of the Code of Civil Procedure gives the particular remedy therein provided. This question we proceed to consider, since if the remedy is not given to him, the complaint was properly dismissed.

The section, as first enacted in 1892, provided that “Any person interested in a will or codicil admitted to probate in this State, as provided by the Code of Civil Procedure, may cause the validity of the probate thereof to be determined in an action in the Supreme Court.” In Lewis v. Cook (150 N. Y. 163) it was held that the action could only be brought by a person interested in maintaining the will, and not. by one claiming in hostility to it. This construction, undoubtedly, led to the amendment of the section in 1897, enumerating three classes of parties who could bring the action, as follows : “ (1) Any person interested as devisee, legatee or otherwise in a will or codicil, admitted to probate in this State, as provided, by the Code of Civil Procedure; (2) or any. person interested as heir-at-law, next of kin or otherwise, in any estate, any portion of which is disposed of or affected, or any portion of which is -attempted to be disposed of or affected, by a will or codicil admitted ■ to probate in this State, as pro vided by the Code of Civil Procedure, "within two years prior to the passage of this act; (3) or any heir-at-law or next of kin of the testator making such' will, may cause '«■the validity or invalidity of the probate thereof to be determined in an action in the Supreme Court.” v. • '

Under the facts alleged in the complaint the plaintiff in this action was the,- husband of the testatrix at the time of her death, and tenant by the curtesy in her real estate in case the testatrix had made no valid disposition of it. (Hatfield v. Sneden, 54 N. Y. 280.) If this will is invalid, then he claims as devisee under her former, will «executed mutually and reciprocally with a will made by himself in lier favor. He thus alleges an interest otherwise ” than as heir at law or next of kin of the testatrix, in the estate which the testatrix attempted to dispose of or affect by the will in question. Thus the casé differs from Ocobock v. Eeles (37 App. Div. 114). The plaintiff is a person embraced in the 2d paragraph of the amended section, above quoted, and comes within a class not embraced in the original section. . He asks to have the invalidity of the probate of the will determined. The original section provided only for the ■determination of the validity of the probate. We must give' the effect" to the word invalidity ” which the Legislature intended, and ■as the amendment followed shortly after the declaration of the law in Lewis v. Cook (supra) we cannot doubt that the word was added to change the law and to embrace actions by the designated persons in hostility to the probate of the will. It is true that the 2d ■paragraph of the amended section speaks of wills admitted to proIbate “ within two years prior to the passage of this act ” (May 22, 1897), and this will was admitted to probate February 14, 1898. A literal reading might restrict the remedial provision in behalf of persons interested in the estate disposed of by the will or attempted sto be disposed of, to such wills and codicils as were admitted to pro-late during the two years prior to May 22, 1897, but such a narrow •construction would, ho doubt, impute to the Legislature an intention -contrary to the fact. That intent, doubtless, was to' give the act a retroactive effect for the two years prior to its passage. The final .paragraph of the section provides that “ The action brought as herein provided shall be commenced within two years after the will or codicil has been admited to probate.’’

The limitation of two years certainly extends to wills adimtted to probate after the passage of the act, and there seems to be no doubt that the limitation was intended to apply in like manner to wills admitted to probate before its passage.

The learned trial judge seemed to think that inasmuch as the ■complaint alleged an agreement between the plaintiff and his wife for the execution of mutual wills, each in favor of the survivor, ■which they executed, and as the plaintiff relied upon it until after the death of his wife, and is still in possession of. the premises, the agreement was valid; and that, therefore, this action is not really brought to establish the invalidity of the probate of the later will, but rather to establish or quiet his title under the former will of his wife.

It may be that the plaintiff had improperly united two causes of action, but that objection should have been taken by demurrer.

How it may be much easier for the plaintiff to establish the invalidity of. the probate of this will, by which the wife attempted to revoké her former will, and to- dispose of her' real estate to the prejudice of the plaintiff, than it is for him in the face of such probate to establish such facts as will show that his wife’s former will is in the nature of an executed, irrevocable contract. If he shall establish the invalidity of the later will, even if he should fail to establish the earlier one, his estate, as tenant by the curtesy, would be confirmed. We think he has the right under the complaint, in the absence of a demurrer, to pursue the remedies he seeks.

The judgment should be reversed, new trial granted, costs to abide the event.

All concurred, except Putnam, J., not voting.

Judgment reversed, and a new trial granted, costs to abide the event.  