Chapman v. Rodgers

Learned, P. J.. I do not think that this action can be maintained under section 2 of chapter 238, Laws of 1853, because the plaintiff is not an heir, [344] nor is he the grantee of a person claiming by descent, nor does he allege the invalidity of the will. ■ Nor does section 1 of that act apply, because that section limits the action by these words : In like manner as the validity of any deed conveying or purporting to convey lands might be determined.” And, as a general rule, an action would not lie by a person in possession against one who merely claimed that a deed was invalid to establish its validity. And, as.,I think, this is not an action brought under 2 Revised Statutes (m. p. 312, § 1, and seg.), a proceeding to compel the determination of claims, etc. The allegations of the complaint do not correspond with the requirements of the statute, and .the relief demanded is not that which is there authorized. (Bailey v. Briggs, 56 N. Y., 414.) As an action of partition, the defect is that the plaintiff is in possession and claims adversely to the defendant. This action, however, seems to have been brought and. tried as an action to establish the validity of a will of real estate. All of the heirs were made defendants. Actions of that nature have been sustained in equity. (1 Story Eq., § 1441, cases cited arguendo; Bailey v. Briggs, ut supra; and see page 415.) The plaintiff seeks, as by a bill of peace, to have the will declared to be valid, The judgment of the court below was that the will was a valid and subsisting will of real estate. The question, then, of the validity of the will does not arise incidentally, but is the sole issue and the matter to be established. In such cases as this the courts of equity used formerly to direct an issue demismit ml non. But whether tried before a jury or before the court, the rule was that all the witnesses to the will must be examined; except in cases of necessity, such as death, insanity or absence abroad, or unless the heir waived his right. (Bootle v. Blundell, 19 Ves., 494.) In that case Lord Eldon says that this is not a technical rule. The court “ before an heir shall be deprived of the opportunity, which the law gives him, by repeated ejectment to try again and again the validity of the will * * * expects that all the witnesses shall be examined on one side or the other.” The same rule is repeated several times in the ojainion. In Tatham v. Wright (2 Russ & My., 1), Lord Brougham recognizes the same rule. In harmony with this rule of equity are [345] the provisions of the statutes requiring the production of at least two witnesses upon probate before the surrogate, and of all if required. (Laws of 1837, chap. 460, §§ 10, 11, 12, 17.) It has undoubtedly been held that, on the trial of other issues, where it becomes necessary to give a will in evidence, it is not necessary to call both witnesses. Such a trial does not establish conclusively the validity of the will against all the heirs. But where the object of the action, as in this case, is to establish a will, forever and conclusively against all the heirs, the rule requiring the production of all the witnesses must prevail unless waived by the heirs. And this is reasonable. For if the statute requires the production of all the witnesses on probate before the surrogate, why should not all be produced in an action like this, which is conclusive even as respects real estate ? To hold otherwise would be to evade the provisions of 2 Revised Statutes (m. p. 65, § 45). It appeared as a fact on this trial, that the plaintiff had been a witness and had given evidence on the probate of this will before the surrogate. If the defendant, being in possession, should be sued in ejectment by Betsey Rodgers, and on the trial of that action this will, proved by only one witness, should be offered in evidence, a differ-•mt question may arise. "W e therefore make no decision as to the validity of the devise to Joseph Rodgers. "We hold only that, in such an action as this, all the witnesses must be called except as above explained. Judgment reversed and new trial granted, costs to abide event.