Katz v. Schnaier

FOLLETT, J. No real estate passing under this will, and this action to vacate the probate having been begun more than one year after it was proved, the action cannot be maintained. Long v. Rodgers, 79 Hun, 441, 29 N. Y. Supp. 981. Again, the plaintiff, having elected to take under the will, cannot maintain this action to set it aside. Caulfield v. Sullivan, 85 N. Y. 153; Lee v. Tower, 124 N. Y. 370, 26 N. E. 943; 1 Jarm. Wills (6th Am. Ed.) 415. Every objection raised to the will in this action was raised by the plaintiff’s sister in the surrogate’s court, and the plaintiff consented in writing that the will should be proved and has received the income upon the $9,000 since it was proved, with full knowledge of the facts [317] and circumstances attending its execution, and of her mother’s condition when executed. Apart from these legal defenses the plaintiff failed to establish a cause of action on the merits, or to present a question of fact for the jury. The will on its face appears to be wise and equitable in every respect The testatrix had an estate amounting to $39,000. She directed that the income of $9,000 be paid to each of two married daughters during their lives, and the remainder to their children. Had the estate been divided equally among the five children, each would have received but $7,800. The reason why the legacies to the two daughters were tied up during their lives is fully explained by the evidence. They had, as it appears, improvident husbands. The evidence is entirely insufficient to justify an inference that the testatrix was incapable of making a will, or that she was unduly influenced, and it was proved to have been executed strictly in conformity with the statute. It is urged on the part of the plaintiff that, in an action brought under section 2653a of the Code of Civil Procedure, the court has no power to direct a verdict. This question has been determined adversely to the plaintiff’s contention in Hawke v. Hawke, 82 Hun, 439, 31 N. Y. Supp. 968. We think it was well held in the case cited that the intention of the legislature was, not that the questions sought to be raised in such an action should be submitted to and determined by the jury without regard to whether the evidence was sufficient to raise a question of fact, but that it was intended the trial should be conducted pursuant to existing laws and rules regulating trials by jury. The judgment should be affirmed, with costs. All concur.