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Augusta G. Genet v. The President, etc., D. & H. C. Co.

standing to the contrary assented to by both parties, might be treated in law as having been waived by the conduct of the plaintiff in accepting the royalties to which she was entitled. It would seem as if the learned Appellate Division, on a former appeal in this case, might have erred in holding, as it in fact did, that this phrase in the receipts had, under the circumstances attending its making and delivery to defendants, no legal effect whatever.

The question, however, is not up for decision as I read the findings, which have been unanimously affirmed by the Appellate Division, for the trial court has not incorporated the receipts into the findings of fact nor disclosed whether it based its conclusion that the plaintiff traced the contract as in force by accepting the royalties accruing thereunder, solely upon the receipt or upon other testimony taken in connection with the receipt, and hence we are bound to assume, in view of the unanimous affirmance by the Appellate Division, that there was evidence to support so much of the finding as in reality finds facts. This will probably be so far remedied on a new trial as to present to the court the clean-cut question of law: Whether, under the facts surrounding the receipt of the royalties by the plaintiff, she did waive such legal rights, if any, as she had in the premises.

The other questions brought to our attention by th Appellate Division are not open on this record for discussion in this court, but the judgment should be reversed because of the error in receiving in evidence the judg ment roll in the former action and a new trial granted; costs to abide the event.

GRAY, MARTIN and CULLEN, JJ., concur with PARKER, Ch. J.; VANN and WERNER, JJ., concur with BARTLETT, J., who reads dissenting opinion.

Judgment reversed, etc.

Augusta G. Genet v. The President, etc., D. & H. C. Co.

Note on Section 1209, Code of Civil Procedure Judgment Roll— Upon the Merits.-A dismissal of a complaint and a judgment well founded thereon from which it does not appear that it is on the merits is equivalent only to a non-suit, and does not bar the bringing of another action for the same cause. McCulloch v. Vibbard, 14 Civ. Pro. 388; Lomer v. Meeker, 35 N. Y. 361; Briggs v. Waldron, 83 N. Y. 582; Wheeler v. Ruckman, 51 N. Y. 391; Nicoll v. Karrick, 29 Civ. Pro. 367; Genet v. Del. & H. C. Co., 163 N. Y. 173; Ross v. Caywood, 162 N. Y. 263.

Where there is a Trial upon the Merits.-At Circuit there is no trial upon the merits unless the questions are submitted to the jury for their findings of fact or a verdict is directed by the court for either party. Mannion v. B'way, etc., R. R. Co., 18 Civ.

Pro. 40.

Remedy-Where "Merits" is Erroneously Inserted.-When there is a non-suit at the close of plaintiff's case, for failure of proof, a recital in the judgment that the dismissal is upon the merits is erroneous and should, upon motion, be stricken out. Mannion v. B'way, etc., R. R. Co., 18 Civ. Pro. 40; Freeman v. United States E. L. Co., 20 Civ. Pro. 177.

What a Judgment may Provide.-But where a demurrer to a complaint is sustained on the ground that sufficient facts are not stated, the interlocutory judgment may properly provide for a dismissal of the complaint on the merits, in case the plaintiff fail to pay costs and serve an amended complaint within the time therein named. Hommert v. Gleason, 20 Civ. Pro. 349.

Answer. If an answer contains a plea of former adjudication it is fatally defective unless it alleges that the former judgment or decree was upon the merits. Patchen v. D. & H. C. Co., 62 App. Div. 544, 9 Ency. Pl. & Pr. 619-621, 2 Van Fleet Form Adj. 1327.

Effect of Non-payment of Costs of the Prior Action.-The failure to pay costs does not deprive the court of jurisdiction but leaves the court to determine in each case the propriety of its exercise. Patchen v. D. & H. C. Co., 62 App. Div. 544; Wessels v. Boettcher, 142 N. Y. 212; Barton v. Speis, 73 N. Y. 133.

In the Matter of Eliza Stapleton.




§§ 1294, 2568, 2586, 2587, 2588.

Right of executor to appeal. Question of testamentary capacity in executing codicil to be submitted to jury.

A person named as executor has a right to appeal from a decree refusing probate to a codicil and admitting to probate the will. The fact that the husband of a testatrix was constantly present with her during her last illness raises no presumption of duress or undue influence, although she changes her will so as to give him an interest in her estate.

Upon appeal from an order denying probate to an instrument purporting to be a codicil to a will, Held, that a jury trial should be awarded to determine the question of testamentary capacity. (Decided March, 1902.)

Separate appeals by Patrick Stapleton and A. J. Leary, as executor, from portion of decree refusing probate to codicil.

Roger Foster and George F. O'Shaunessy, for appellants.

John A. Foley, special guardian, for respondents John C. and William Egan.

Joseph H. Fargis, for respondents Annie Egan and Hugh Egan.

O'BRIEN, J.-We think that the executor has in this case the right to appeal. The Code of Civil Procedure

In the Matter of Eliza Stapleton.

provides (secs. 1294 and 2568) that a "a party aggrieved may appeal." These words as applying to executors have been construed in several instances by the court; but we have been referred to no case wherein the refusal of the surrogate to admit a will or codicil to probate was involved. In the authorities cited in the dissenting opinion, the question related to the construction to be given to a portion of a will which arose after probate and in the course of administration, when the obligation resting upon the executor was purely ministerial and he had no interest in the actual distribution made, and, therefore, was not "aggrieved" by the decision rendered. A distinc tion, however, is to be observed between directing an executor as to the precise manner in which he shall act and denying to him the right to act at all. In the latter case he becomes a "party aggrieved," because he is charged with the duty of probating the instrument by virtue of which he receives his office, and thus he is entitled to appeal from a decree which ousts him from the exercise of such functions, and which denies to the beneficiaries whom he represents the right to receive the property as set forth in the will or codicil.

This principle was fully recognized in the authority relied upon of Bryant v. Thompson (128 N. Y. 435), wherein the court defined a party aggrieved as one "having an actual and practical as distinguished from a mere theoretical interest in the controversy," and said: "The case of People ex rel. Burnham v. Jones et al. (110 N. Y. 509), is not contrary to these views. In that case the commissioners of the land office, representing the State, made a grant of land under water to an individual. Subsequently the determination of the commissioners *** was reversed by the Supreme Court on certiorari and the commissioners appealed to this court, where a motion to

In the Matter of Eliza Stapleton.

dismiss was denied. The order appealed from in that case in effect nullified the grant made by the State, and the commissioners, as public officers representing the State, were in duty bound to defend the grant against the effect of an erroneous decision and so were aggrieved." And in Bliss v. Fogg (27 N. Y. Supp. 1053), it was held (headnote) that, "where judgment is rendered for defendants in an action by executors to compel a transfer to them of certain property, the executors are parties aggrieved' within Code of Civil Procedure, section 1294."

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In considering similar language in Green v. Blackwell (32 N. J. Eq. 768, 772), where the statute there gave an appeal to any person aggrieved," the court said: "Whoever stands in a cause as the legal representative of interests which may be injuriously affected by the decree made, is, within the meaning of these laws, aggrieved and, therefore, may appeal." A codicil is a part of the will. It is executed with the same formalities, and the testamentary disposition sought by it to be made is treated and is the same as though the provisions were actually incorporated in the body of the will itself. The codicil, in fact, is a will, and is to be carried out by the executors named in the will, and, therefore, the same rules apply as would apply to rights of parties acquired under a will.

Upon the merits, we think this is peculiarly a case which should be submitted to a jury for determination. The evidence, as we view it, preponderates in favor of the conclusion that the codicil was duly and properly executed, and that the testatrix was of testamentary capacity. What is to be kept in mind in every case where the probate of a testamentary paper is involved, is whether the legal requirements are complied with and whether the testator was of sound mind and disposing memory and unaffected by undue influence or constraint. As will be

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