
    Robert Wallace, Appellant, v. George E. Payne, Individually, and George E. Payne and Neil O. Fitch, as Executors of the Last Will and Testament of Eliza Ann Williams, Deceased, Respondents.
    
      Devise of real estate leased for unexpired terms — right to a determination in equity as to the validity of the devise—right of, the devisee to a trial by jury.
    
    The complaint, in an action in equity, alleged that the plaintiS was the son and only heir at law of Eliza Ann Williams, deceased; that her alleged will had been filed in the office of the Surrogate’s Court for probate, by which, after giving several legacies, she gave the residue of her estate, real and personal, to the defendant George E. Payne, and nominated him executor of the will; that the will was not duly executed; that its execution was procured by fraud, circumvention and undue influence practiced upon the alleged testatrix by the defendant Payne, and that certain premises of which she died seized had been leased by her to tenants for terms which had not expired at the time the action was commenced, and would not expire for some time thereafter. The plaintiS further alleged that he had no adequate remedy at law.
    The complaint was dismissed on the ground that it did not state facts sufficient to constitute a cause of action and for want of jurisdiction.
    
      Held, that the dismissal of the complaint was erroneous;
    That, while a devisee was entitled to a trial by jury as to the validity of a devise to him of real estate, yet the allegation of the complaint, that his testatrix had leased the devised premises for unexpired terms, presented, in the fact of the occupation by suqh tenants, an obstacle: to a recovery by the plaintiff in an action at law, which justified a court of equity in taking jurisdiction of the case;
    That, while the mere factum of a will was exclusively a matter for a probate court, yet probate was not essential to a devise of realty, and as the present . action related to the will only in so far as it purported to devise real property, the allegations: óf the complaint were sufficient to justify equitable cognizance; That the question whether the defendant George E. Payne, as devisee, should • be denied the right to have the validity of his devise tried by jury, might,, in the -future,, be presented in a proper manner for the consideration of the court.
    Appeal by the plaintiff, Bobert Wallace, from a judgment of the Supreme Court in favor of the defendants, entered in .the office of the cleric of the county of Queens on the 13th day of February, °1896, upon the decision of the court, tendered after a trial at the Queens County Special Term, dismissing the plaintiff’s complaint.
    Upon the first hearing of the appeal in this action the judgment appealed from was affirmed, the case being reported in 9 Appellate Division, page 34. A reargument was afterwards ordered.
    The plaintiff, by his complaint, alleges that he is the son and the only heir at law of Eliza Ann Williams, deceased; that her alleged will had been filed in the office of the Surrogate’s Court for probate, by which, after giving several legacies,. she gave the residue of her estate, real and personal, to the- defendant Payne and nominated him executor of the will; that the will was not duly executed; that its execution was prociired by fraud, circumvention and undue influence practiced upon the alleged testatrix by the defendant Payne, and that certain premises of which she died seized had been leased by her to tenants for terms which had not expired at the time the action was commenced, and would not expire for some time thereafter; that by reason of the facts set forth in the complaint the plaintiff had no adequate remedy at law,
    The defendant Payne answered,' and on the trial the complaint was dismissed on motion made, on the ground that it did not state facts sufficient to constitute a cause of action, and for want of jurisdiction.
    
      George JlaTm, for the appellant.
    
      .A. T¿- Payne, for the respondents.
   Bradley, J.:

This is an. action in equity by the heir at law of Eliza Ann Williams to have her alleged will declared void. The first hearing of the appeal resulted in affirmance of the judgment appealed from,, on the ground that the plaintiff had an adequate remedy at law by virtue of section 2653a of the Code of Civil Procedure. (9 App.Div. 34.) This had been held to be the effect of that section in Lewis v. Cook (89 Hun, 183). But the Court of Appeals on the review of that case held to the contrary, and reversed the judgment. (Lewis v. Cook, 150 N. Y. 163.) Thereupon a reargument of the case at bar was ordered and heard.

It is the common-law right of a devisee of real estate to have atrial by jury in an action at law when the devise to him is in question. And this is said to be a right guaranteed to a devisee or heir by the Constitution. (Corley v. McElmeel, 149 N. Y. 236.) There-is no statute which seeks to confer the right to maintain such an. action in equity. But it has been held that such a common-law right is so far qualified that, when there is no adequate remedy at law, an action like the present one may properly be brought in equity for such relief. This was held by the majority of a divided court-in Brady v. McCosker (1 N. Y. 214). There the original bill was-filed by the person who claimed title as heir of his father *to one-half of the real estate in question, and as heir of his brother, thedevisee of the father, to the other half, to obtain a decree declaring the will of his brother, which had been propounded to the surrogate: for proof, declared void upon the alleged ground that its execution-had been fraudulently and improperly procured by. one of the-defendants. And the alleged reason for seeking the relief in the-equitable jurisdiction was that at the time of filing the original bill the premises were subject to an unexpired trust term created by the will of the father, and part of them to an unexpired lease executed, by such brother of the plaintiff. The question whether the remedy could be sought in equity was raised by demurrer to the bill.. The decision of the vice-chancellor overruling the demurrer was affirmed by the chancellor. ' (McCosker v. Brady, 1 Barb. Ch. 329.) And the view of the court on the final review in affirming-the court below was that the trust was valid, but that if it was-invalid then the lease passed the interest of the lessor for the term to his tenant,, who must be deemed to have been in actual possession when the bill was filed, and that siich facts presented an obstacle to a recovery at law, which forum the court recognized as the only one in which to seek relief in such case unless án adequate remedy at law is not available to a party plaintiff. It may be observed that after the termination of the trust term in that case a supplemental bill filed by the successor of the original complainant rested, upon the then outstanding lease term.

The matters alleged in the complaint in the present case bring it within the doctrine of the Brady case., The purpose of the action is: substantially the.same,.is founded on ¡the merits upon a like alleged . state of facts,, and the alleged reason why the. plaintiff has not an' . adequate remedy at law is that Mrs. Williams, prior to her death,, made leases of certain described parcels of land of which she died seized, to tenants, for terms not expired, and that they then went into and still remain in possession of the premises under such leases. It is true that the terms of the leases are not, nor are the names of the lessees, stated in . the complaint,' But the essential facts of leases to tenants, and tiheir possession. are alleged.. And because the court •might, on motion, require the plaintiff to make his complaint in that respect more ¡definite and certain, it does not follow that the facts . are not sufficiently alleged to give support to the action. Those allegations referred to are not of conclusions, of law, but are of facts from which the conclusion follows that the tenants were in the possession óf the premises by virtue of demises made by the testatrix. Our attention, is called to no case since the Brady pase, similar in principle to it; except Clarke v. Sawyer (2 N. Y. 198), in which no question of jurisdiction was raised until on review in the Court of Appeals, which was too late for an ¡available objection. And in view of the fact that, by being thus permitted to resort to a court of equity for such relief, a plaintiff may deny to an heir or. devisee his common-law right of trial, by jury in the true sense of the term, the doctrine of that case is not entitled to favorable consideration, bécause the denial of such right is practically unnecessary, since the moving party in a proper case inay corpae into a court of equity and obtain injunction against the devisee enjoining him from setting up an outstanding, term as a defense to an ¡action of ejectment. (Jones v. Jones, 3 Meriv. 161; Anderson v. Anderson, 112 N. Y. 108.) .Such injunctive relief- is not asked for by the plaintiff in his complaint, and as the case here presents merely the question of law arising upon the plaintiff’s exceptions tó the dismissal of the complaint, no direction can be given on this appeal other than such as may result from the determination of such question of law.

Whatever view we might otherwise have on the subject, the Brady case cannot be here disregarded while it remains undisturbed by the highest court of the State. In the Anderson case, it was •cited without criticism. Nor was there any occasion in that case to review it. There the action was to establish a will against the heirs .at law of the testator, and the Brady case had no necessary application to any question arising there for determination, yet Judge Peokham discussed somewhat questions pertaining to the inherent jurisdiction of a court of equity in a manner not entirely favorable to the doctrine applied in that case. And it is said by one of the ■counsel that the trial court dismissed the complaint upon the •authority of Anderson v. Anderson, where the court remarked that ■“the general policy of this State is and has been to commit to the ■courts of probate' the decision of questions- arising upon the due ■execution of an alleged will.”

While it is true that the mere factum of a will is properly, and .should be exclusively, a matter for the probate court, where the determination otherwise than by review on appeal is conclusive as to the personal property, but is otherwise as to realty, and as the proof of the will in that court is not essential- to a devise made by it, a right of action in support of or in hostility to a devise of real ■estate is not dependent upon any action or proceeding in the Surrogate’s Court for the probate of the will. (Corley v. McElmeel, 149 N. Y. 228.) The purpose of the present action has relation to the will so far only as it purports, to devise the real property of the testatrix. And as the complaint is not entirely barren of allegations ■of facts, other than those of inadequacy of remedy by action at law, properly for consideration in its support, the exception to the dismissal of the complaint seems to have been well taken.

Nevertheless, the question whether the defendant as devisee shall bé denied the right of trial by jury may in the future be presented :in a proper manner for the consideration of the court.

The judgment should be reversed and a new trial granted, costs, to abide the final award of costs.

All concurred."

Judgment reversed and new trial granted, costs to abide the final award of costs.  