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Irving v. Rees

Supreme Court of New York, Appellate Division

November 3, 1911

LOUISE E. IRVING, Appellant,
v.
LOUISE S. REES and Others, Respondents, Impleaded with EMMA M. SANDS and Others.

APPEAL by the plaintiff, Louise E. Irving, from an interlocutory judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of New York on the 8th day of May, 1911, upon the decision of the court rendered after a trial at the New York Special Term sustaining the said defendants' demurrers to the amended complaint in an action brought under section 2653a of the Code of Civil Procedure.

COUNSEL

Page 704

George S. Franklin, of counsel [Joseph P. Cotton, Jr., and George H. Savage with him on the brief], Joseph P. Cotton, Jr., attorney, for the appellant.

John B. Pine, for the respondents.

CLARKE, J.:

The complaint alleges that Emma C. Sands, a widow, died on the 29th of December, 1907, at Independence, Mo., leaving an estate consisting wholly of personal property, which was at the time of her death and still is situate in the city, county and State of New York; that on the 26th of March, 1908, defendant Rees filed in the Surrogate's Court of New York county a written instrument purporting to be the last will and testament of said Emma C. Sands, bearing date November 7, 1895, and a codicil bearing date June 2, 1906, together with a petition for probate; that on December 30, 1908, and within two years prior to the commencement of this action, said instrument was admitted to probate; that said written instruments so admitted to probate are not the last will and testament and codicil of Emma C. Sands, deceased; that on the 27th of December, 1907, at Independence, Mo., the said Emma C. Sands, being of sound mind and competent to make and declare her last will and testament, duly executed an instrument in writing as her last will and testament, thereby revoking all other wills and codicils by her theretofore made, and bequeathing all her estate situate in the State of New York, excepting some minor bequests, to her son Irving H. Sands and his wife Emma M. Sands, which said last will and testament was on January 12, 1908, duly admitted to probate as such in the Probate Court of Jackson county, State of Missouri; that on October 23, 1907, at Independence, Mo., the said Irving H. Sands duly executed an instrument in writing as his last will and testament, bequeathing and devising all his estate to his wife Emma M. Sands and his children Louise E. Sands (now Louise E. Irving), Edward R. Sands, Irving H. Sands, Maynard M. Sands and John R. Sands, which said last will and testament was on the 14th of September, 1909, duly admitted to probate as such in the Probate Court of Jackson county, Mo. And plaintiff alleges: 'That plaintiff is a daughter

Page 705

of Irving H. Sands, deceased; that said Irving H. Sands, who died subsequent to January 30, 1909, was a son of and survived said Emma C. Sands, and plaintiff as such is a grandchild and heir at law and next of kin of said Emma C. Sands, having an interest as heir at law and next of kin in her estate affected by an alleged will and codicil of said Emma C. Sands, deceased, admitted to probate in the Surrogate's Court of New York county, as hereinafter in paragraph third alleged.' And she prays that the will probated in New York be adjudged invalid and void and the will probated in Missouri be declared and adjudged the last will and testament of Emma C. Sands.

The complaint was demurred to on the ground that it did not state facts sufficient to constitute a cause of action, the claim being that it appeared upon the face of the complaint that the plaintiff was not one of the persons entitled to commence an action under section 2653a of the Code. The demurrer was sustained and plaintiff appeals.

Said section provides that 'Any person interested as devisee, legatee or otherwise, in a will or codicil admitted to probate in this State, as provided by the Code of Civil Procedure, or any person interested as heir at law, next of kin or otherwise, in any estate, any portion of which is disposed of, or affected, or any portion of which is attempted to be disposed of, or affected, by a will or codicil admitted to probate in this State, as provided by the Code of Civil Procedure, within two years prior to the passage of this act, or any heir at law or next of kin of the testator making such will, may cause the validity or invalidity of the probate thereof to be determined in an action in the Supreme Court for the county in which such probate was had. All the devisees, legatees and heirs of the testator and other interested persons, including the executor or administrator, must be parties to the action.'

The plaintiff makes three claims: First, that for the purposes of construing this section of the Code the time of the commencement of the action must be taken as the time at which should be determined who is the next of kin of the decedent; second, that at such time she was the next of kin, being the daughter of a deceased son of the decedent who, however, had survived her; and third, that if she is not a next

Page 706

of kin she comes within the phrase 'any person interested * * * otherwise.'

The right to maintain this action is purely statutory. The plaintiff must show that she comes within one of the classes specified in the statute. It is admitted that she is not a devisee, and, as the estate consists ...


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