Bensen v. Manhattan Railway Co. , 43 N.Y.S. 914 ( 1897 )

O’Brien, J.:

The sole question to be decided is whether St, Luke’s Hospital, through whom the plaintiff by mesne conveyances acquired title, ever had a valid title to the premises. It is insisted that the hospital took no title to the land under the residuary clause of the will because it was executed one day prior to Mrs. Keese’s death, and that the attempted trust was void, notwithstanding chapter 253 of the Laws of 1870; that the heirs of Mrs, Keese, by appearing on the probate of her will and unsuccessfully contesting the same, are not thereby estopped from elsewhere asserting their rights; that the Supreme Court action brought by the executor against the hospital for the purpose of charging the real estate with the payment of debts and legacies was unauthorized; that the heirs of Mrs. Keese, who were not made parties, are not in any manner concluded or affected by the judgment therein, and that- the plaintiff’s title has not been placed beyond -question by - twenty years’ adverse possession. As shown by his opinion, the only question considered by the referee, material to be decided, was whether any title passed to St. Luke’s Hospital under the residuary clause of the will.

In thus disposing of the rights of the parties the referee did not go far enough. For, though We conclude that he was right in holding that the hospital took no title under the will, there yet remains to be considered the question whether or not-St. Luke’s- Hospital acquired title independently of the will under the sale by the referee in the Supreme Court action. The respondents contend that, as the heirs of Mrs. Keese were not made parties, they are not concluded by the judgment, and that the action itself was unauthorized, because the legacies were not charged upon the' realty, and there being, as claimed, a sufficiency of personal assets to pay the debts.

Whether 'or not the heirs at law were necessary parties to such action will depend upon the further question as to whether or not the surrogate had jurisdiction to pass upon the validity of the pro-r visions of the will when upon the probate thereof such validity was contested. Because we think it follows, that, if ,the decree, of the surrogate was a binding adjudication which could only be reviewed on appeal, it is not open to attack collaterally ; and, therefore, that the validity of the devise or bequest to the hospital having been sustained, and the latter having by virtue thereof acquired title to the premises, the only necessary parties to the Supreme Court action would be the executor and the hospital. In other words, if the hospital acquired, by force of the surrogate’s decree, a right to the property, it, and not the heirs at law and next of kin, was the only necessary party, because its rights alone were therein affected.

This narrows the discussion, therefore, to the question whether the surrogate had jurisdiction upon -the probate of the will to pass, upon the validity of bequests relating to real estate. The statutes, as construed by all the authorities, agree in fixing the status of the Surrogate’s Court as one of limited jurisdiction. It has no inherent or equitable jurisdiction, and its powers are conferred and limited by statute. From the organization of such courts in this State down to 1870 the surrogate was without jurisdiction to adjudge upon testamentary dispositions in a will so fai; as they related to real estate,, and any attempt to usurp such jurisdiction was not binding on heirs, or those interested in the real estate, nor would such persons be estopped by a surrogate’s decree declaring the validity of such testamentary dispositions, whether made at the time of or subsequent to admitting the will to probate. By chapter 359 of the Laws of 1870, section 11, however, the jurisdiction of the surrogate in New York county was extended, the provision being that “ in any proceeding before the said surrogate to prove the last will and testament of any deceased person as a will of real or personal estate, or of both real and personal estate, in case the validity of any of the dispositions contained in such will is contested, or their construction or legal effedt called, in question by any of the heirs or next of kin of the deceased, or any legatee or devisee named in the will, the surrogate shall have the same power and jurisdiction as is now vested in and exercised by the Supreme Court, to pass upon and determine the true construction, validity and legal effect thereof; he shall enter in his minutes any decision he may make in relation thereto, and any of the heirs or next of kin of the deceased, or any of such legatees or devisees, may appeal therefrom, in the same manner, and with the-same effect in every respect as is now provided by law in relation to-appeals from decisions of surrogates admitting wills to probate, or refusing the same.” The jurisdiction thus sought to be conferred was, as we have said, greater than before that act had ever been exercised by the surrogate, for therein we find for the first time the power given ¡to the surrogate to adjudge upon testamentary dispositions relating: to real estate. This act continued in force until 1880, when at the adoption of the Code of Civil Procedure (§ 2627), the the statute in question was repealed, and the effect and extent of a decree of the surrogate admitting to probate a will of real property was expressed in the written law.

• It may be conceded then that-this provision of the Code embodies the law as it always had been prior to 1870, and as it has been by express statute re-enacted in 1880. But as the will of Mrs. Keese was admitted to probate during the period when the act of 1870, conferring jurisdiction upon the surrogate as to testamentary dispositions, was in force, the only questions remaining are as to the constitutionality of such an act, and whether, under a fair construction thereof, it conferred upon the surrogate the jurisdiction to' make a binding decree in reference to testamentary dispositions of real estate. The question whether the Legislature could deprive either the heir or devisee of the right to try a question of title to real estate before a jury is a serious one, and we recall decisions in which it has been said that it is the settled law' of this State that, a party has a constitutional right to a trial by jury in any action which involves the title to land. But there are other cases, equally authoritative, which allow the. parties to waive such right, and here it has been shown that the surrogate, having legislative sanction for his' acts, was requested by the heirs at law to determine the validity of the bequests under the will of Mrs. Keese. We think that by such ■course they waived their constitutional right, if it existed, to have the question of title thus presented tried by a jury. Upon the construction of the act itself, we think its language is broad enough to show a legislative intent to confer upon the surrogate jurisdiction .upon the probate of the will to determine the validity of the devises ■or bequests which were by the heirs at law assailed. His adjudication thereon in the form of a decree, which has not been appealed from, nor in any. way attacked, should be held binding upon the heirs at law. In determining the question, therefore, as to whether the hospital took a valid title under the judicial sale in the Supreme Court ¡action, we must keep in mind the fact that the Legislature in terms ■conferred upon the surrogate jurisdiction to determine questions ¡as to real estate; that his determination was reached upon a proceeding for the probate of the will; that such will must now be regarded as having been a valid will, duly admitted to probate, and that probate has remained unrevoked. Assuming, therefore, that the surrogate’s decree was binding, the executor in commencing the suit in the Supreme Court and making the person to whom this real estate had been devised — who was the only party having any rights to be affected — a party defendant, brought before the court all the necessary parties; and, in such an action, brought under such circumstances, the heirs at law were not necessary parties.

We have not overlooked the case of Bevan v. Cooper (72 N. Y. 327) in which it was said: “ The Surrogate’s Court is one of limited jurisdiction, having only what is given by the express terms of statutes, * * * and some powers incidental thereto.” It was therein held that in a proceeding to charge a legacy upon a residuary estate in the hands of an executor, in respect to which there is a question of fact or law, a surrogate has no jurisdiction to decide the question . upon the settlement of the executor’s accounts. In that case the provision of the act of 1870 (Chap. 359, § 11), to which we have referred, was cited, and it was held that this provision “ applies only and is expressly restricted to proceedings to prove a will.” As already pointed out, the validity of the title of the hospital was presented and determined upon the proceeding to probate the will, and, therefore, the case cited is not an authority as against the construction which we have placed upon the wording of the act of 1870, namely, that it does upon proceedings to probate a will confer jurisdiction upon the surrogate to determine the validity of testamentary dispositions affecting real estate..

Our conclusion is that, while we1 might agree with the referee, were the question an open one, that the determination of the surrogate was erroneous, his decree not having, been appealed from, and having been made in a proceeding to which the heirs at law were parties, is binding, and cannot be collaterally attacked by the presr ent defendants ; that such heirs at law were not necessary parties in the Supreme Court action, and that under a judicial sale in such action, brought by the executor against the person whose title was confirmed by the surrogate’s decree, and the only party having any rights to be affected, the hospital, having purchased on such judicial sale, acquired a valid title.

We think, therefore, that the judgment should be reversed-, and* as the parties by stipulation have agreed as to the judgment to be entered, it should, pursuant to the stipulation, be in favor of the plaintiff, with costs in the court below and here. •

Van Brunt, P. J., and Williams, j., concurred.