Hook v. Pratt , 15 N.Y. Sup. Ct. 102 ( 1876 )

E. DaiíwiN SMitk, J.:

The demurrer was sustained at Special Term upon the ground that the complaint does not contain facts sufficient to entitle the plaintiff to the relief prayed for in the complaint.

In this I think the learned judge was mistaken. The complaint sets up, and makes out, a case of fraudulent destruction of three clauses of the will of the said James P. Haskins, deceased, and prays, among other things, that such clauses, marked the eleventh, twelfth and thirteenth, be restored and established as part of said, will and testament. This court has full power and authority, I think, under sections 42, 63 and 67, title 1, chapter 6, part 2 of the Eevised Statutes, to entertain such action, and give such relief, as held in Timon v. Claffy (45 Barb., 438), and Voorhis v. Voorhis (50 id., 119), which latter case was affirmed in the Court of Appeals, in 39 New York, 463. ( Vide, also, Schultz v. Schultz, 35 id., 656.)

■ The Surrogate’s Court had no power to grant such relief. It can only grant letters of probate upon a perfected will, propounded for that purpose. It can take proof respecting its due execution, and has exclusive jurisdiction of that subject in respect to all persons named in the will or interested therein as heirs, legatees or next of kin. But it has no jurisdiction to establish a lost or destroyed will. The plaintiff in this action stood in no such position or relation to the testator as to entitle her to be cited to attend the probate of the said will, and was not, in fact, cited. Section 63 of the statute above referred to, declares that “ whenever a will of real or personal estate be lost or destroyed, by accident or design, the Court of Chancery shall have power to take proof of the execution and validity of such- will, and to establish the same as in the case of a lost deed; ” and section 64 provides, that “ upon such will being established by the decision of a competent court, it shall be recorded by the surrogate before whom it might have been proved if not lost or destroyed,” and letters testamentary, with the will annexed, shall be issued thereon by him in the same manner as upon wills duly proved before him. Section 67 provides, that “ no such will shall be proved as a lost or destroyed will, unless the same shall be shown to have been in existence at the time of the death of the testator, or be shown to have been fraudulently destroyed in the lifetime of the testator.” This is the allegation in the plaintiff’s complaint in respect to the three items or clauses of the will stricken out of the same. This statute should have a liberal construction in furtherance of justice and for the prevention of fraud. The destruction of a single item or clause, or distinct portion or provision of a will fraudulently, must be considered as the destruction of a will by design, under section 63, or fraudulent under section 67, if such destruction affects the disposition of the property of the testator in any essential particular.

I have no doubt that this court, under the provisions of the statute aforesaid, has ample power, upon due proof of the allegations of the plaintiff’s complaint, to restore the destroyed or suppressed portions of said will, and establish the same as it stood before the making of the codicil, dated and purporting to be executed on the 7th of April, 1872, and that the probate of said codicil already allowed as made by the surrogate does not preclude, such investigation and decision, or bind or affect the plaintiff upon such question in the prosecution of this action.

The order sustaining the demurrer in said complaint should be reversed and the said demurrer should be overruled, with leave to the defendants to answer upon the usual terms.

Present — MulliN, P. J., SMith and Taloott, JJ.

Order sustaining demurrer reversed and demurrer overruled, and leave to answer granted upon the usual terms.