In re Proving the Last Will & Testament of Hermann

Rich, J.: The conclusions of the learned surrogate are based upon the provisions of section 2510 of the Code of Civil Procedure. In his opinion assuming jurisdiction, he sayd: “ I am convinced that under section 2510 the surrogate has full power to determine all legal and equitable questions submitted to it regarding the probate of wills. Section 2510 provides that the surrogate has full, complete and equitable power and subdivision 1 further states ‘ to. admit wills to probate.’ Section 2614 provides that before admitting a will to probate, the surrogate must inquire particularly into all the facts and circumstances and further must determine that the testator at the time of executing it was in all respects com — 188 — petent to make a will and not under restraint. * * * It would seem, therefore, that the surrogate has full power both equitable and legal to inquire into the facts and circumstances in such a case as the one at bar.” In the conclusion as to the extent of his equitable powers and jurisdiction, the learned surrogate was in error. The disposition of this appeal is controlled by the decision of this court in Matter of Holzworth (166 App. Div. 150; 215 N. Y. 700), in which the equitable powers of Surrogates’ Courts under the provisions of section 2510 of the Code of Civil Procedure were considered, and we reached a conclusion adverse to that held by the surrogate. In that case the question was whether, under the provisions of section 2510, full equity jurisdiction was given to Surrogates’ Courts to determine all questions legal and equitable upon the facts presented to them. Mr. Justice Carr, writing for the court, after quoting the provisions of the section referred to, says: “ But this legislative declaration is followed immediately by language as follows: f And in the cases and in the manner prescribed by statute ’ [then follows a quotation of the third and fourth subdivisions]. As I understand the law of statutory construction, all general phrases in a statute must yield to a particular specification contained in the same statute. As to the subdivisions of section 2510, just quoted, the cases and the manner in which the surrogate may exercise his equitable jurisdiction are specified particularly. Where there is such a specification, it must exercise its jurisdiction in accordance with the specification. Its general equitable power must yield to the statutory restrictions upon it or directions as to it, and where the statute prescribes when and how it shall act, it cannot act otherwise than is prescribed. I think this is so well settled, even as to courts of general equitable jurisdiction, as to require no discussion.” Commenting on this opinion, Ketcham, Surrogate, in Matter of Kenny (92 Misc. Rep. 330, 338) correctly says: “ It is useless to argue that in the opinion quoted there was any thought that the particular provision of the statute which restricted the general power was to be found in section 2510. There was no restriction, or specification in that section as to distribution in kind. The only suggestion in any of its subdi — 189 — visions 1 to 8 as to qualifications of any of the powers therein contemplated was that such qualifications were to be looked for in statutes other than the section itself. * * * As to restraints upon the treatment of these subjects, the only reference is contained in the words ‘ in the cases and in the manner prescribed by statute,’ language plainly postponing the mind to instances and methods to be sought outside of the section itself. In section 2736, one of these other statutes, there is the definite restriction with respect to distribution in specie which nobody can discover in these subdivisions 1 to 8. ' That was the restriction which the court found. It was that upon which the court had commented as the only specific regulation of the surrogate’s power, unless some other provision was found in section 2510. While the opinion quotes subdivisions 3 and 4 of section 2510 they are quoted only to introduce and give meaning to section 2736.” Prior to the amendment of 1914 (Laws of 1914, chap. 443), it was uniformly held by our courts that it was the duty of a surrogate to admit to probate the will of a decedent last executed in point of time, if the testator was competent to make it and it was executed in conformity with the requirements of the statute, and it was not within his power to pass upon the question of whether the decedent had the right to execute such will because of a previous agreement to the contrary. If such an agreement existed, that fact and its legal results could only be determined by the Supreme Court in an action in equity, and the manner of determination was not to admit a former will to probate, although such former will was the result of a contract between the testator and a third party governing the testamentary disposition of their property, but to sustain the contract, if established by clear and convincing testimony and supported by an adequate consideration and compelling its performance by the heirs of the decedent, or otherwise granting adequate relief. This rule has not been changed by section 2510 of the Code. Section 2614 of the Code of Civil Procedure (formerly section 2623, the wording about to be quoted being the same) provides in-part: “If it appears to the surrogate that the will was duly executed; and that the testator, at the time of executing it, was in all respects competent to make a will and not under restraint; — 190 — it must be admitted to probate as a will valid.” The words “ competent ” and “ restraint,” used in this section, have no reference to conditions caused by or arising from the prior execution of a joint will or contract, but refer and are limited to mental competency, and a restraint exercised, at the time of the preparation and execution of the will offered for probate, upon the testator by relatives or third persons, leading to and overcoming his free will in the testamentary disposition of his property. While the provisions of section 2510 enlarged the jurisdiction of surrogates by general phrases giving them the power to “ try and determine all questions, legal or equitable, * * * as to any and all matters necessary to be determined in order to make a full, equitable and complete disposition of the matter by such order or decree as justice requires,” such provision is followed by the words, “ And in the cases and in the manner prescribed by statute: 1. To take the proof of wills; to admit wills to probate; and to take and revoke probate of heirship.” The general phrases contained in this section by which equitable jurisdiction was given surrogates, are limited to its exercise in cases, (1) when the question acted upon was “ necessary to be determined in order to make a full, equitable and complete disposition of the matter ” being considered, and upon which they were called to act in determining the presented questions; and (2) in the manner prescribed by statute. In the case at bar the only questions presented to the surrogate and to be determined by him in the proceeding commenced by the petition of Klein to probate the will of 1914, were whether the testatrix was at the time of its execution mentally competent to make a will; whether such instrument was her will and voluntary act, uninfluenced by undue solicitation or restraint, and whether it was executed in conformity with statutory requirements. (See Decedent Estate Law [Consol. Laws, chap. 13; Laws of 1909, chap. 18], § 21; formerly 2 R. S. 63, § 40.) To determine these questions there was no necessity for the surrogate to consider or act upon the former joint will, which had been revoked by express provisions in the later one; but if it was permissible for him to exercise the equity powers conferred upon surrogates by section 2510 of the Code, such power and jurisdiction were limited to the — 191 — extent, and could only be exercised in the manner, prescribed by statute. Under the requirements of section 2614, it was his duty, upon the facts presented, and found by him, to admit the later will to probate, leaving the respondent to the enforcement of his legal rights under his contract, if any existed, by an action in equity in the Supreme Court. The surrogate’s decision, and the decrees appealed from, rest upon the conclusion that the mere fact of the joint will having been executed constituted it an irrevocable contract restraining the decedent from executing another and later will changing the disposition made of her estate. This view is erroneous. So far as Surrogates’ Courts are concerned, there are no irrevocable wills. As Judge Miller, writing for the Court of Appeals, said in Rastetter v. Hoenninger (214 N. Y. 66, 71): “As a will an instrument is revocable at pleasure, but as a contract, if supported by an adequate consideration, it is enforceable in equity.” Now, as before the enactment of section 2510, surrogates must admit to probate the last will of a decedent, proven to their satisfaction to comply with the provisions and requirements of section 2614, and any contract for a different disposition of the property of the testator must, if enforcible, be established in and enforced by an equity action brought in the Supreme Court against the heirs, devisees and legatees of the testator. The construction of section 2510 contended for by the respondent and sustained by the surrogate, would present a very grave question as to its unconstitutionality, possibly requiring its condemnation on that ground. The order brought up for review was erroneously granted. Subdivision 6 of section 2490 of the Code of Civil Procedure contains the only authority possessed by surrogates to open, vacate or set aside a decree granted and entered in their courts, and to grant a new trial or hearing. The exercise of such power must be based upon the existence of fraud, newly-discovered evidence, clerical error “ or other sufficient cause.” (Matter of Hawley, 100 N. Y. 206; Matter of Clapp, 97 Misc. Rep. 576, 578.) In Matter of Tilden (98 N. Y. 434) it was held that the words “ or other sufficient cause ” in this section (formerly subdivision 6 of section 2481) meant and were limited to “ causes of like nature with those specifically named.” — 192 — The petition of the respondent to vacate and set aside the decree by which the will of 1914 had been admitted to probate, open the proceeding and permit him to file objections, does not aver the existence of either of the grounds to which the power of the surrogate to' act was limited, and did not excuse his default; he did not deny that he had executed a waiver of the issuance and service of citation after being made acquainted with the provisions of the will, and consented in writing that it be admitted to probate, or.that, after he had done so, he was duly personally served with the citation issued; no valid grounds of objection, within the jurisdiction of the surrogate, were presented, and the decree previously granted, admitting the will of 1914 to probate, should not have been set aside. It is not necessary to consider whether the facts before the surrogate justified the conclusions as to the! legal effect upon the parties arising from the execution of the joint will, or their respective rights and disabilities thereunder, because, having no jurisdiction to entertain and determine such questions, his conclusions thereon are immaterial. It follows that both of the decrees of the Surrogate’s Court of Queens county, and the order brought up for review, must be reversed, with costs, and the decree of June 19, 1915, admitting to probate the will of 1914, reinstated with the same force and legal effect in all things as if it had not been vacated and set aside. Jenks, P. J., Thomas, Stapleton and Blackmar, JJ., concurred. Decrees and order of the Surrogate’s Court of Queens county reversed, with costs, and decree of June 19, 1915, admitting to probate the will of 1914, reinstated with the same force and legal effect in all things as if it had not been vacated and set aside.