John v. Andrews Institute for Girls

Cullen, Ch. J. The question presented by this motion is whether certain of the next of kin of the testator who failed to appeal from the judgment of the Supreme Court, which declared that they had no right to any part of the estate of said testator, can take advantage of a reversal of said decree by this court made upon the appeal of certain other of the next of kin. It may first be well to dispose of the notion or suggestion that a judgment in an action for the construction of a will differs in effect from judgments in other actions. The substance of the argument is that the action by the executors is for instructions and that there cannot be inconsistent instructions given by the court in the same action. The judgment of the Special Term, however, was not merely advisory but settled and declared the rights of the parties thereto among themselves. The right to maintain such an action is not confined to the executors, but may be exercised by any beneficiary under the will, though not by one claiming in hostility to it. (Chipman v. Montgomery, 63 N. Y. 221.) The qualification that the action cannot be brought by a party claiming in hostility to the will is, so far as relates to personalty and to proceedings in the Surrogate’s Court, abrogated by section 2624 of the Code of Civil Procedure, which requires the surrogate on the application of any party to the proceeding to determine the validity, construction or effect of any disposition of personal property contained in the will. . (See Matter of Mount 185 N. Y. 162.) In such actions or proceedings every party thereto may assert his claim or right and the judgment rendered is as conclusive on such right as it would be in any other litigation. The case of Bryant v. Thompson (128 N. Y. 426) is decisive of this question. There the beneficiaries under the will of the plaintiffs’ testator were his widow and a daughter by a *385 former marriage, an infant at the time of the testator’s decease. The will contained a clause forfeiting any provision in favor of a party who might contest the will. The will was contested by the special guardian of the infant. The action was brought by the executors against the infant and the widow, the residuary legatee, to determine whether the contest by the guardian forfeited the infant’s legacy. The Special Term held it did not. The executors appealed to the General Term, where the judgment of the Special Term was affirmed. The executors then appealed to this court. The residuary legatee took no appeal from the judgment of the Special Term nor from that of the General Term. The appeal of the plaintiffs, executors, was dismissed by this court on the ground that the executors had no interest in the controversy and were not aggrieved by the judgments below. Judge O’Brien, writing for the court, said : “ The plaintiffs clearly liad the right to bring this action in order to obtain a judicial determination of the question as to which of the two claimants was entitled to the fund, and also to obtain the instructions of the court in regard to their duties under the will. They have obtained these instructions and this determination from the highest court of the state possessing original and general jurisdiction. * * * They had an interest and it was their duty to procure a judicial determination of the questions presented by the facts alleged, but no interest or duty in obtaining a decision according to some view of the law that they may have themselves entertained or have been advised by counsel. * * * The plaintiffs are not concerned in the slightest degree in any legal sense with the question whether the provision for the daughter be held for her or deemed revoked under the other clause and secured to the widow.” The case cited also disposes of the suggestion that on appeal the executors represented in some way the non-appealing defendants or that they had some duty to secure a reversal in their favor. As a matter of fact the plaintiff in this case, the executor, did not appeal, and had he appealed, under the authority cited, his appeal would have been dismissed. *386 Therefore, the effect of the reversal of the judgment before us on the rights of the non-appealing defendants is to be determined by the same rules that apply to similar appeals from judgments generally. The rule is stated by Mr. Freeman in his work on Judgments (Vol. 2, sec. 481): “ Where a judgment is against two or more persons, one only of whom appeals, its reversal, if the judgment was binding upon the defendants jointly, or if all must co-operate in complying with the judgment, affects the parties who did not appeal to the same extent as those who did. (Pittsburg, etc., Ry. Co. v. Reno, 123 Ill. 273.) But if a defendant does not appeal, and is not made a party to the appeal by the service on him of notice thereof, au appeal by his co-defendant, followed by a reversal of the judgment, cannot authorize the retrial of the cause as against the non-appealing defendant, and the new trial must be confined to the issues between the parties to the appeal.” (Minturn v. Baylis, 33 Cal. 129, 134; Nichols v. Dunphy, 58 Cal. 605; Little v. Superior Court, 74 Cal. 219; Withers v. Jacks, 79 Cal. 297.) So a joint judgment such as that rendered against partners or against joint obligors cannot be affirmed as to one defendant and reversed as to another, but must be reversed in its entirety except so far as the rule is modified by statute (1 Black on Judgments, § 211 etseg.), and this rule is applicable to a judgment in equity as well as to one in an action at law. (Altman v. Hofeller, 152 N. Y. 498.) But the question remains, and this is the only substantial question in the case, was the judgment rendered by the Special Term, and from which no appeal was taken by certain of the defendants, a joint judgment or a several judgment. For even in an action at law against several joint tort feasors the liability of the defendants being several, though in form a single judgment may be entered against them all, the judgment may be reversed on appeal as to one defendant and affirmed as to the other. (Hubbell v. Meigs, 50 N. Y. 480. See McIntosh v. Ensign, 28 N. Y. 169; Bullis v. Montgomery 50 N. Y. 352.) Up to this point I understand my brother Chase and myself *387 to be in accord. Our difference is whether the judgment is a joint or a several judgment. Here I may dispose of the suggestion that the judgment is against a class. There is no authority for suing a class as such as distinguished from the individuals composing that class, except that given by section 448 of the Code of Civil Procedure, where the parties of a class are too numerous to render it practicable to join them all as parties to the action, one or more may be selected as representing the class. Ho such situation existed in the present case, nor was there any attempt to sue one defendant as representing the others, but each person in interest was made a party, that lie might defend or assert his rights in person and on his own behalf. The argument of my brother seems to proceed on the theory that because the issues on which the case was disposed of at the Special Term were common to all the defendants, the next of kin, therefore, the judgment against them was necessarily joint. I think the question of the identity of issue between the several parties has no necessary bearing on the question whether the judgment is joint or several. The distinction between the interest in a question and interest in a particular judgment is well illustrated by the rule which disqualifies judges from hearing causes. A judge cannot sit in the hearing of an appeal from a judgment in an action in which he is interested or he is related to the parties within the specified degree, and the judgment rendered by a court in which such disqualified judge takes part is a nullity (Oakley v. Aspinwall, 3 N. Y. 547), but on the other hand interest of the judge in the question involved in the case has no effect on his qualification to sit and determine it. (People v. Edmunds, 15 Barb. 529.) Another illustration is the case of a judgment against two tort feasors. The issue on which the parties have been held liable may be identical and the ground on which the judgment has been reversed may be as fatal to the recovery against one defendant as against the other, yet, as already stated, a reversal against one will' inure in no respect against the other. Such was the case of Geraud *388 v. Stagg (10 How. Pr. 369). The action was for libel against two defendants. From a judgment in favor of the plaintiff only one defendant appealed. The judgment was reversed on the ground that the plaintiff’s own evidence did not show a cause of action. The order entered by the General Term of the Common Pleas reversed the judgment as to the appealing defendant only. A motion was thereupon made to amend the order so as to reverse the entire judgment. The motion was denied in an opinion written by an eminent judge, Woodruff, afterwards a judge of this court. What then does determine the question whether the judgment in this action was joint or several ? Had-the cause been determined at the Special Term in accordance with the view subsequently held by this court there would have, been awarded to the several next of kin tlieir proportionate shares under the Statute of Distribution of the rents' and profits which accumulated between the death of the deceased and the incorporation of the defendant, the Andrews Institute, and such will be the nature of the judgment entered on the remittitur from this court. The interest of each of the next of kin in the accumulated rents was several, belonging solely to himself and subject at all times to assignment by him, to seizure through a court of equity by his creditors'. The interest of the next of kin in undisposed of personalty in no way differs from the interest of the heirs at law in undisposed of realty. They are not joint tenants, but tenants in common, and the action or litigation of one cannot conclude or affect the rights of the others. In the share of each of the next of kin the others had no interest. (Pelly v. Bowyer, 7 Bush [Ky.] 513.) Therefore, the judgment against the interest of each was several. Had such judgment in the first instance been in favor of the next of kin and the Andrews Institute had appealed from it, we couid have reversed that judgment only so far as it made the defendants parties to that appeal. (McCammon v. Worrall, 11 Paige Ch. 99; Tate v. Liggat, 2 Leigh, 84, 108; Fasker v. Small, 1 P. C. Cooper, 225. See, also, South Portland Land Co. v. Munger, 30 Ore. 457; Todd v. Daniel, 16 *389 Peters, 521; French v. Powers, 177 Mass. 568.) Had it seen fit to serve its notice of appeal solely on the four defendants who have appealed to this court, the court could not have reversed the judgment of the Special Term in favor of the two defendants who were not made parties to the appeal. I am at a loss to see why the principle must not necessarily be the same in both cases. The great stumbling block in this case seems to be the apparent, if not real, incongruity of the result arrived at; that is to say, that a distribution will be made in favor of four of a certain class of defendants, which is denied to two others of the class, whose rights are exactly the same. For this incongruity, however, this court is not responsible. It is occasioned by the voluntary action of the two non-appealing defendants themselves. They acquiesced in the decision of the Special Term, erroneous though it was, and it is that and that alone that causes the incongruity. Hor is this incongruity an entire anomaly in the history of litigation. A very marked instance may be found in the litigation under the will of John Anderson. Some of the heirs at law being dissatisfied with its testamentary disposition instituted ejectment suits to test the validity of the will. Thereupon the principal devisee brought an action in equity against the heirs at law to establish the will and to restrain the prosecution by them of actions at law to recover the real estate. The Special Term granted an injunction as prayed for which was reversed by the General Term of the Supreme Court. This court affirmed the decision of the General Term, holding that no such action could be maintained and that the devisee must wait until his title was attacked in suits at law. (Anderson v. Anderson, 112 N. Y. 104.) To that action one Carr, the husband of a deceased daughter of the testator, and Mrs. Watson, a granddaughter of said testator and a daughter of Carr, were made parties. Pending that branch of the litigation, which was decided by this court in the case referred to, the plaintiff in the action settled with Mrs. Watson, and as a condition of such settlement obtained the consent of the defendant Carr to the entry against him of a judgment enjoining the prosecu *390 tion of any suits. After this court had decided that the action could not he maintained Carr commenced a new action against the plaintiff in the equity suit claiming as tenant by the curtesy, whereupon proceedings were taken to punish his attorney for contempt in violating the injunction. The attorney was adjudged guilty of contempt at Special Term, the order was affirmed at the General Term (65 Hun, 179) and by this court (137 N. Y. 565). There could hardly he any greater inconsistency in judicial determinations than presented by the case cited. While as to the defendants who chose to litigate the question it was held that no such action could be maintained, the defendant who did not litigate it was punished for the violation of an injunction which, if he had litigated it, could not have been granted. Yet the issue which determined the case was exactly the same as to all the parties, the inability of the plaintiff to maintain the action. The incongruity proceeded not from the inconsistency of the decisions of the court, but from the voluntary action of the party. There can be no distinction in principle drawn between the acquiescence in a judgment evidenced by consent and that evidenced by a failure to appeal. The case of Woodhaven J. Land Company v. Solly (148 N. Y. 42) was to restrain the violation by the grantee under a deed and his tenant of certain covenants restricting the use of the premises. The judgments below were in favor of the defendants. On the merits the decisions below were upheld by this court, but there having been produced a consent on the part of the landlord to a reversal of the judgment, the judgments below were reversed as to him, but affirmed as to the tenant, though the sole ground on which the tenant was entitled to succeed was that the covenant was not binding on the landlord. Of this result Judge Finch said: “ We are not responsible for the reversal as to Solly (the landlord) which rests wholly upon his assent.” So, in the case before us, we are not responsible for the divergence in result on the rights of the several next of kin, hut that result is due solely to the acquiescence of certain of the parties by their failure to appeal. The decision *391 in the case cited also necessarily involved the proposition that the identity of the issue as to the defendants did not necessarily render the judgment against them joint. There is nothing in the case of Altman v. Hofeller (supra) inconsistent with the views I have expressed. That was an action in equity by the sureties of an administrator against (with others) the guardian of one of the next of kin and the said next of kin, to settle the accounts of the administrator, and the judgment in the action declared that the administrator had fully paid over to the guardian the infant’s share. On appeal the General Term reversed the judgment as to the infant, but affirmed it as to the other parties. It was held that the adjudication that the administrator had fully paid the guardian was conclusive on the infant, despite the reversal of the judgment as to him. In that case the judgment was necessarily an entirety, for the very money or property for which the infant sought to hold the sureties of the administrator was the same money or property which the judgment declared had been paid to the guardian. As already said, in. the case before us the share of each of the next of kin was several and distinct from the shares of the others. The motion should be granted.