Supreme Court, May, 1902.

[Vol. 38.

power of sale given to the trustee in the will, and that the proceeds should be paid to the heirs and devisees and others entitled in certain proportions.

Before the making of the agreement Richard Garvey died, a resident of and at the city of Boston, Mass., leaving a last will and testament bequeathing and devising all his property to certain persons therein named; said will was duly proved in the Probate Court of Suffolk county in said State, and the executor thereafter procured ancillary letters testamentary in New York county. The said executor was a party to the agreement before mentioned. The plaintiff alleges that her father, Richard Garvey, was of unsound mind and incompetent to make a will, and that the will made by him was procured by undue influence, and seeks in this action for money had and received to recover $29,212.63, the amount paid in pursuance of the aforesaid agreement to his executor. The United States Fidelity & Guaranty Company, surety on the official bond of the ancillary executor, demurs to the complaint upon the grounds that it does not state facts sufficient to constitute a cause of action and that the court has not jurisdiction of the subject of the action.

I think the demurrer on the ground of legal insufficiency is well taken. There is no allegation that the will of Andrew J. Garvey is invalid. The fact that for the sake of buying peace the devisees and the heirs made the agreement referred to does not prove invalidity. Whether or not the testator gave more than one-half of his estate to corporations or associations mentioned in the act of 1860 is a question of fact, which must be alleged and proved in an action by the heirs-at-law to recover possession of the estate which the testator devised to such corporations, but to which the prohibition of the act of 1860 applies. Garvey v. Union Trust Co., 29 App. Div. 522. The heirs of Andrew J. Garvey therefore had no rights in the real property devisel which the plaintiff can enforce in this action on the theory that the will of her father, Richard Garvey, was obtained by undue influence. Whatever rights the heirs-at-law acquired in the estate of Andrew J. Garvey they obtained through the agreement made by them and the devisees. It seems to me that such rights were personal, not real property, and as to those rights, contingent at the time of his decease, the will of Richard Garvey was a will of personal property. Under the circumstances the decree of the

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Surrogate's Court, Allegany County, May, 1902.

Probate Court of Suffolk county, Mass., Richard Garvey's domicile, was conclusive (Mills v. Duryee, 7 Cranch., 481; Crippen v. Dexter, 13 Gray, 333; Dublin v. Chadbourn, 16 Mass., 433; Parker v. Parker, 11 Cush., 519; Nelson v. Potter, 50 N. J. L., 324; Willett's Appeal, 50 Conn., 330), and cannot be collaterally attacked by the plaintiff.

Even assuming that this court could go behind the Massachusetts decree, still the plaintiff would have no standing, for Richard Garvey might have owed debts sufficient to wipe out his estate, and the only right of the plaintiff, as next of kin of her father, would be to an accounting for and distribution of any surplus that might remain after administration.

The demurrer must, therefore, be sustained, with costs, with leave to amend on the usual terms.

Demurrer sustained, with costs, with leave to amend on usual

terms.

Matter of the Estate of WILSON PERRY, Deceased.

(Surrogate Court, Allegany County, May, 1902.)

Surrogate's Court - Inventory - Exemption to widow under Code C. P., 2713, subds. 1, 2, 3, 4.

The Legislature did not intend to give a widow the value in money of any of the articles mentioned and described in Code of Civil Procedure, section 2713, subdivisions 1, 2, 3, 4, as exempt, and unless her husband owned those articles at his death she gets nothing under those subdivisions.

MOTION for the surrogate to order that the widow of Wilson Perry be paid in cash from the money in the hands of the administrator, belonging to said estate, the value of certain articles, enumerated in section 2713, Code of Civil Procedure, and under subdivisions 1, 3, and 4 of said section, for the reason that at the death of Wilson Perry, some of the articles enumerated in said section, under said subdivisions, were not in existence, and for that reason she did not receive them.

D. D. Dickinson for Harriet Perry, widow.

Charles Stevens special guardian for Bertha Perry and others, infants.

Surrogate's Court, Allegany County, May, 1902. [Vol. 38.

REYNOLDS, S. It is conceded that the widow received in articles enumerated in subdivision 4 of section 2713, Code of Civil Procedure, the value of only twenty-two dollars and ninety-five cents, for the reason that none other of the articles was in existence. That under subdivision 3 of said section she received nothing, and that under subdivision 1 she did not receive the sewing machine, for the reason that no such article was owned by the deceased, and the attorney for the widow asks this court to order the administrator to pay to the widow in cash, the value of these articles, and to substantiate his claim he cites Matter of Williams, 31 App. Div. 617, 52 N. Y. Supp. 700, and Matter of Hembury, reported in 37 Misc. Rep. 454, 75 N. Y. Supp. 933.

It is perfectly clear that both cases cited by the counsel for the widow are directly in point and warrant his contention if they are to be followed, but from a careful reading of section 2713, it seems clear to this court that it was not the intention of the Legislature to give to the widow the value in money of any of the articles enumerated in this section, under subdivisions 1, 2, 3, and 4, and unless the deceased owned those articles at the time of his death the widow gets nothing under these subdivisions. For it will be observed that under subdivision 5, the express direction. is given to the appraisers, to set apart "Other necessary household furniture, provisions or other personal property.

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to the value of not exceeding $150." Under that subdivision they have the right to set apart money for the widow's use and benefit, but under no other subdivision do we find that direction, personal property," which may include money.

Under subdivision 1, all spinning-wheels shall be set aside. If there are none, who is to say how many spinning-wheels the widow should be paid for and what their probable value would be, and by what system of proof are we to arrive at the value of the several and various articles enumerated in this section? It would seem that the Legislature in enacting this law, could not have been so blind as to the difficulties that would arise in proving the value of these articles. If it had intended that the widow should receive their cash equivalent, it would have fixed the amount under each subdivision of this section that the widow would receive if she did not take the articles enumerated.

And again, following subdivision 5, the said section provides: "Such articles and property shall remain in the possession of the

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Supreme Court, June, 1902.

widow," referring to the articles contained in the various subdivisions in this section.

I cannot follow the law as laid down in the William's Matter, 52 N. Y. Supp. 700, or Matter of Hembury (supra). In the case of Baucus v. Stover, 24 Hun, 109, it was held, "that the statute authorizing the setting apart of sheep and swine to the widow only applies where the deceased had such ownership at the time of his death, as would permit of their delivery." This case was reversed on appeal, but on other grounds than here considered, and the question under consideration was not discussed by the appellate court, and is some authority for the conclusion here reached. Therefore, the motion is denied.

Motion denied.

MALLIE ZWERLING, Plaintiff, v. MOSES ANNENBERG, Defendant. (Supreme Court, Kings Special Term, June, 1902.)

Pleading

Statements of the answer merely inconsistent with the complaint raise no issue.

Allegations of the complaint are not put in issue merely by statements inconsistent therewith contained in the answer, and consequently where the plaintiff alleges an unlawful entry of her dwelling and a battery of her person the defendant's answer, that he entered under authority of a chattel mortgage on the plaintiff's goods and to assist in removing them and did not assault her, raises no issue and makes the answer frivolous.

MOTION for judgment on an answer as frivolous.

Abraham Miller for motion.

Moses Annenberg, in person, opposed.

GAYNOR, J.: The complaint is in brief that the defendant forcibly and unlawfully entered the dwelling of the plaintiff and seized and dragged her out of her room, and committed a battery upon her.

There is no formal denial in the answer, but it alleges at length

Supreme Court, June, 1902.

[Vol. 38.

that a third person had a chattel mortgage on the plaintiff's chattels, and that the defendant assisted him at his request to enter the plaintiff's dwelling and foreclose the mortgage and take the goods, and that he did his duty in that respect, and did not assault the plaintiff. The allegations of the answer set out an entry under the express terms of the mortgage, and are inconsistent with the unlawful entry alleged in the complaint, and also with the battery there alleged.

It is an established rule of pleading that the allegations of the complaint cannot be put in issue by inconsistent allegations of fact in the answer, but only by a formal general denial, or by formal specific denials, as required by the Code of Civil Procedure ($500). As was recently said in that respect by our highest court (Smith v. Coe, 170 N. Y. 167):

"But, as already stated, there was no denial, general or specific, of the allegations of the complaint referred to, except so far as such denial could be spelled out or inferred from an inconsistent version of the transaction given by the pleader in the answer. The allegations of a complaint are controverted or put in issue only by a general or specific denial. A material fact alleged is not controverted or put in issue by a statement inconsistent with the facts alleged, or from which a general denial may be implied or inferred. (Rodgers v. Clement, 162 N. Y. 422, 428; Fleischmann v. Stern, 90 N. Y. 110; Marston v. Sweet, 66 N. Y. 210; Wood v. Whiting, 21 Barb. 190; West v. American Exchange Bank, 44 Barb. 175)."

Here is a precise statement of the ancient rule that no statements in an answer, however inconsistent with the allegations of the complaint, can answer the purpose or be accepted in lieu of the required formal denial.

In the same volume, however, as is pointed out, there is a decision to the contrary in the case of Staten Island M. R. R. Co. v. Hinchcliffe (p. 481). There, after a general denial, the defendant pleaded certain facts as a "defence". It was expressly held that although such facts were not of "new matter constituting a defence " as required by the Code (§ 500), and were not a fence ", but on the contrary came under the general denial (i. e., were within the issue raised thereby and provable thereunder), that nevertheless a demurrer thereto had to be overruled, for the reason that such allegation of facts inconsistent with the allega

de