In Re Sharp

This is an appeal from a decree of partial distribution, made by the superior court (in probate), whereby it distributed to Adolph B. Spreckels and Reuben H. Lloyd $80,000 of the $200,000 bequeathed to them by the will of *Page 635 deceased, and which was the subject matter of the litigation in the case of James O'Donnell et al. v. Samuel G. Murphy. et al. (No. 1034), ante, p. 625, [120 P. 1076], this day decided by this court.

In the case at bar the respondents Spreckels and Lloyd filed a petition, on June 6, 1907, for the distribution to them of the $200,000 bequeathed to them in terms by the will of said decedent, Honora Sharp. To this petition the appellants, claiming to be the only heirs at law of said decedent, filed a demurrer, and subsequently, before the court had passed thereon, filed an answer, petition and cross-complaint. This pleading was filed subsequently to the commencement by respondents of the action in equity, above referred to as this day decided by this court, and the "petition and cross-complaint" consisted of the complaint filed in the action in equity. The answer also set forth the commencement of such action in equity, and made the complaint therein a part of such answer. Respondents demurred to the answer, petition and cross-complaint, and this demurrer was sustained without leave to amend, and the court in due time granted the petition of respondents in part, and from this order or decree appellants appealed. As stated by counsel for appellants at the oral argument (the two appeals were argued together before this court), appellants opposed the petition for distribution of the $200,000, given by the will to Spreckels and Lloyd, on the ground that it was void because given as a secret but invalid trust, and that appellants had a right to litigate this question in the probate proceedings.

The court, however, was of the opinion that appellants had mistaken their remedy, that the court in probate could not consider the matter, that their remedy was to bring an independent action in equity to charge the legatee of the void legacy with a trust in favor of the heirs at law.

Counsel at the oral argument admitted that such was the usual course, but as appellants had appealed from the decree of distribution, the matter was submitted to this court.

That the course adopted by the heirs at law in bringing the action in equity was the proper one to pursue to enforce their alleged rights is abundantly established by the authorities called to our attention through the learning and industry of counsel for appellants upon the appeal in the equity case. *Page 636 (Matter of Will of O'Hara, 95 N.Y. 403, [47 Am. Rep. 53];Fairchild v. Edson (Edson v. Bartow), 154 N.Y. 199, 215, [61 Am. St. Rep. 609, 48 N.E. 541]; Amherst College v. Ritch, 151 N.Y. 282, [45 N.E. 876, 37 L. R. A. 305].)