
    PAXTON v. PATTERSON.
    
      N. Y. Supreme Court, First District, Special Term;
    
    
      April, 1890;
    
      General Term;
    
    
      February, 1891.
    1. Demurrer for misjoinder of defendants?] A demurrer for the misjoinder of defendants is unauthorized.
    2. Demttrrer by person against whom no judgment is asked?] In an action to enjoin a person named as an executor from proceed- - ing to probate the will, a legatee joined as a party defendant, against whom no personal judgment is asked,, may separately demur to the complaint for insufficiency.
    3. Injunction; enjoinment of probate proceedings?, The supreme court will not enjoin probate proceedings in a surrogate’s court, unless it clearly appears that the party seeking the injunction would be remediless without resorting to a court of equity.
    4. The same?] The supreme court will not entertain an action by executors to enjoin a defendant from proceeding in the surrogate's court to obtain the revocation of the probate of the will, under which the plaintiffs act, and from-proceeding to probate a subsequent will, where plaintiffs base their right to such relief upon the ground that defendant is estopped by having accepted payments as legatee under the will probated. The surrogate has ample power after revocation of such will to preserve to plaintiffs the benefit of such estoppel upon their accounting.
    •5. Executors?] Upon an accounting and distribution of an estate, the surrogate can prevent injustice being done executors who have proceeded in the course of distribution according to the consent of all the legatees and persons interested.
    6. Will; estoppel?] The surrogate is bound to admit a last will to probate on due proof, and no act of an executor offering a will for probate can deprive persons interested in the estate of the right to have the will admitted.
    Demurrer to complaint.
    The action was brought by Daniel Paxton and James B. Hackett, individually and as executors of the last will and testament of John Patterson, deceased, against George W. Patterson and Eliza Brogan, to restrain the defendant, George W. Patterson, who was named as executor in an alleged later will from proceeding to probate such will.
    The defendant, Eliza Brogan, was a legatee under both wills. No special relief was claimed against her.
    The complaint substantially alleged that citations were issued and gerved on defendants in the proceedings for the probate of the will in which plaintiffs were named as executors; that after citation was issued but before it was returnable, George W. Patterson filed in the office of the Surrogate an alleged later will of decedent with the usual petition for probate. Subsequently George W. Patterson abandoned his proceedings under the understanding with the plaintiffs that the alleged will was invalid. The will under which plaintiffs claimed was afterwards admitted to probate and letters testamentary issued to them.
    It was also alleged that the plaintiffs had been repeatedly recognized by Patterson as executors of decedent; that he had received from plaintiffs as such executors'a portion of the estate of decedent on account of a residuary legacy to him in the will, whose probate he was seeking to have revoked.
    The defendant, Eliza Brogan, demurred to the complaint upon the ground that there was a misjoinder of parties defendant, and upon the further ground that the complaint did not state facts sufficient to constitute a cause of action.
    At special term, O’Brien, J. sustained the demurrer on the ground that the complaint did not state facts sufficient to constitute a cause of action. The judg ment of the special term was affirmed on appeal to the general term with opinion by Daniels, J.
    For further proceedings in the same matter before the surrogate (see Matter of Patterson, p. 395 ; 22 Abb. N. C. 425.)
   O’Brien, J.

The Code (§ 488) does not authorize a demurrer on the ground of a misjoinder of parties defendant, therefore the first ground of demurrer is overruled.

The second alleged ground of demurrer is that the complaint does not state facts sufficient to constitute a cause of action as against the defendant Eliza Brogan. This ground of demurrer seems to me to be well taken, for the reasons that may be briefly stated. The complaint asserts no cause of action against Eliza Brogan, and contains no averment showing that she is a necessary or proper party for a complete determination of the action between the plaintiffs and the defendant George W. Patterson. The gist of the action is to obtain an injunction to prevent the defendant Patterson from proceeding in the surrogate’s court to obtain the revocation of a will already probated, and from proceeding to obtain the probate of another and distinct will, executed by the testator at a period subsequent to the will already probated. The plaintiff’s right to such relief is predicated upon the statement that the defendant Patterson is estopped by his acts, having taken and received benefits under the will probated. As Patterson is the real defendant against whom the allegations in the complaint are made, it is evident that, if a cause of action is not stated as against him, none exists against the demurring defendant, Eliza Brogan, who is made a party because she is named as a beneficiary in the will, and against whom no relief or judgment is asked.

It remains, therefore, to consider whether a good cause of action is stated as against the defendant Patterson.

It is asserted that the surrogate is prevented, by reason of his limited statutory power, from entertaining the defense of an estoppel in the proceeding commenced in the surrogate’s court to revoke the will already probated, and to secure the probate of the subsequent will, as hereinbefore stated. In this view as to the surrogate’s limited power to do justice between the parties, I do not agree. Upon .him has been conferred by statute the exclusive power to probate a will, and to entertain proceedings to secure the revocation of a will already probated. As has been well said by the learned judge in denying an application for an injunction in this case, pendente lite: “ This court ought not, excepting in a case where the plaintiff would be clearly remediless without resorting to a court of equity, to undertake to interfere with the surrogate in the exercise of his jurisdiction.” That the plaintiffs are not remediless, and that the surrogate is not powerless to protect the plaintiffs as executors, becomes apparent when we consider the results that would flow, assuming that the defendant, George W. Patterson, should succeed in revoking the present will, and probating the one now offered. After a revocation of a will an accounting would follow, in which the executors would be protected in reference to any payments made under such will, by directions of those entitled to take thereunder. Again, upon grounds of public policy, the testator is entitled to have his last will probated. When, however, it comes to the distribution of the estate, the surrogate can prevent injustice being done to the executors who have proceeded in the course of such distribution according to the consent and directions of all legatees, devisees, or beneficiaries named in the will, even if it be assumed that he cannot regard or take notice oí the estoppel as a bar or defense. The surrogate, therefore, having ample powers to protect the plaintiffs, and they not being remediless, joined to the reluctance which this court will always show when asked to enjoin the surrogate in matters within his peculiar jurisdiction, seem to me conclusive against plaintiff’s right to an injunction, which is the ultimate relief sought. The facts stated, therefore, not being sufficient to warrant a judgment in plaintiffs’ favor, the demurrer must be sustained.

Booraem, Hamilton & Beckett, attorneys for appellant (William H. Hamilton, of counsel.)

Christian G. Moritz, attorney for respondent ( Wm. G. Choate, of counsel),

I. The probate of the earlier will, not a bar to the proceedings to probate the later one (Citing Williams on Executors, 5th ed. 291; Tollor’s Law of Executors, 3rd Am. ed. 72; Braw's Law of Probate, 7 Mod. R. 146; Wentworth on Executors, 113; Wilkson v. Robinson, 14 Jurist, 72; Cutto v. Gilbert, 9 Moore’s Privy Council, R. 131 ; Bricks Estate, 15 Abb. Pr. 12; N. Y. Code Civ. Pro. § 2481; Shultz v. Shultz, 10 Gratt, 358; Bowen v. Johnson, 5 R. I. 119; Waters v. Stickney, 12 Allen [Mass.] 1; Mass. R. S. Ch, 156, §§ 5. 21; Campbell v. Logan, 2 Bradf. 90; Cunningham v. Souza, 1 Redf. 462 ; Booth v. Kitchen, 7 Hun, 255 ; Reed’s Will, 2 B. Mon. [Ky.] 79 ; Canfield v. Crandall, 4 Dem. [N. Y.] 111).

II. The equitable estoppel even if established against the defendant Patterson, will not operate to prevent the proving of the subsequent will, there being other parties interested (Citing Matter of the Will of Gouraud, 95 N. Y. 256; Bogardus v. Clark, 9 Paige, 623; Vanderpoel v. Van Valkenburgh, 6 N. Y. 190; Freeman on Judgments, 3d ed. § 608; Code Civ. Pro. § 2622; Redfield's Surrogate’s Practice, 4th ed. 128; Hoyt v. Jackson, 2 Dem. 443, 456).

Judgment accordingly, with leave to serve an amended complaint, upon payment of costs.

III. The surrogate’s court has power to entertain and pass upon the equitable plea of estoppel in a proceeding to prove a will or to revoke the probate of a will, and no other court has jurisdiction of the matter. (Citing Strong v. Strong, 3 Redf. 477; Redmond v. Ely, 2 Bradf. 175 ; Otis v. Hall, 117 N. Y. 131; Hyland v. Baxter, 98 Id. 610 ; Booth v. Kitchen, 7 Hun, 255 ; Vand'erpoel v. Van Valkenburg, 6 N. Y. 190,198; Post v. Mason,, 91 Id. S39 ; Anderson v. Anderson, 112 Id. 104, 113.

Daniels, J.

John Patterson, at the time of his decease, left two instruments executed as his last wills. The first is dated on the 18th of April, 1888, and the last on the following day. The first has been admitted to probate by the surrogate of the county of New York, and letters testamentary issued to the plantifis, who are the executors named in that will. The second has been presented for probate by the defendant, George W. Patterson, one of the executors named therein, and he has also applied for the revocation of the probate of the preceding instrument. This action has been brought to restrain these proceedings for the reason that the defendant, George W. Patterson, who is named as residuary devisee and legatee in both instruments, has received part of the estate, together with other benefits, under the first will. The defendant, Eliza Brogan, who is a legatee, has demurred to the complaint, assigning as one of the grounds for her demurrer that the complaint fails to state facts to present a cause of action.

This defendant, as well as other persons, are entitled to legacies under the will proposed to be proved. And as the principle invoked by the complaint has no application to them, it was the .duty of the defendant named as executor to present the instrument for probate, for, their benefit, and to prove and establish it as a will, if that can be done.

To the Surrogate, also, the jurisdiction has been given to take proof of. the instrument as a will, and this jurisdiction is in its nature exclusive. It is the right of all persons interested in the estate that the instrument shall be proved, and they cannot be deprived of that right by reason of any preceding act of the person named as an executor. And, when the proper-proof has been given, it is imperative on the surrogate that the instrument must be admitted and established as a will (Code Civil Procedure, §§ 2472, 2614 and 2623). While the principle relied upon to support the-action is extremely well settled, it has no application to the proceeding taken for the proof of this will. And if it shall be proven, then it necessarily will supersede the proof of the preceding will and annul the letters issued under it to the plaintiffs as executors. The action is wholly without support, there being nothing-sustaining it, even in Matter of Soule (19 N. Y. State Reporter, 533). And the judgment should be affirmed with costs.

Van Brunt, P. J., and Brady, J., concurred.  