In re Mount's Will

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: CULLEN
• Citation: In re Mount's Will, 185 N.Y. 162, 77 N.E. 999 (N.Y. 1906)
• Decision Date: 08 May 1906
• Parties: In re MOUNT'S WILL.

185 N.Y. 162

77 N.E. 999

In re MOUNT'S WILL.

Court of Appeals of New York.

May 8, 1906.

Appeal from Supreme Court, Appellate Division, First Department.

In the matter of the will of Charlotte A. Mount, deceased. From a judgment of the Appellate Division (95 N. Y. Supp. 490), affirming a decree of the surrogate admitting a will to probate, certain of the next of kin of testatrix appeal. Affirmed.

W. H. Hamilton, for appellants.

Charles F. Brown, for respondents.

CULLEN, C. J.

The appellants are certain of the next of kin of Charlotte A. Mount, who died in the city of New York, March 27, 1904, leaving a last will and testament. On the proceedings for the probate of the will, the appellants put in issue the validity, construction, and effect of the disposition of the testatrix's personal property contained in the following provision: ‘Ninth. I give, devise and bequeath all the rest, residue and remainder of my estate, real and personal of what nature and kind soever, and wherever situated to my executors who shall qualify as such under the thirteenth clause of this my will as trustees upon the following trusts: To lease and manage the real estate, to invest and reinvest the personal estate, to collect and receive the rents, the interest and income of such real and personal estate, and to pay over to my sister Susan, the entire net amount of such rents, interest and income during the term of her natural life. Immediately after the death of my said sister, my said executorsor the survivors of them as such trustees shall divide the said residuary estate (real and personal) into as many shares of equal value as will make one for each of the children then living of my nephew Richard H. Mount and one for the lawful issue collectively, of each of the children of my said nephew (if any) who may then have died leaving such issue, and shall set apart one of such shares to each child then living, and one to such issue collectively of each deceased child, which shares shall be designated as the property of such parties respectively and my executors shall keep separate accounts of such respective shares. My said executors as such trustees shall pay over to the children of my said nephew if then of the age of twenty-five years otherwise on their arriving at that age the net income of the shares so set apart for them respectively during the period of their respective lives and after their deaths respectively they shall distribute and pay over such shares to the issue of such children respectively in equal portions per stirpes. My said executors and trustees shall pay over to and distribute among the issue of any deceased child or children of my said nephew who shall at the death of my said sister Susan be of the age of twenty-five years, otherwise as soon as they respectively attain that age their respective portions of the share so set apart to such issue collectively.’

The answers of the appellants charge that the entire disposition was void as suspending the absolute ownership of personal property for lives not necessarily in being at the testator's death. The surrogate made a decree sustaining the trust for the sister during life, but refusing to determine the validity of the provisions disposing of the estate after the death of the sister on the ground, as stated in the decree, ‘owing to the uncertainty as to who will be entitled to inherit the estate after the death of the said Susan Mount, and the fact that no decision can now be made thereupon except at the hazard of adjudicating upon the rights of persons who are not parties to the present proceeding, and that no present necessity requires that any decision thereupon be now made.’ From the affirmance of that decree by the Appellate Division this appeal is taken. Though the appeal to the Appellate Division was from the entire part of the surrogate's decree which deals with the construction and validity of the will, it is substantially conceded that the trust for the testator's sister is valid. It is contended, however, that all the dispositions of the property subsequent to the death of the sister, with the possible exception of the alternative gift in a single contingency, are illegal and void, that the remainder subject to the life estate of the sister vested in the next of kin of the testatrix, and that the appellants were entitled to have the surrogate so hold and adjudge.

Section 2624 of the Code of Civil Procedure provides: ‘If a party expressly puts in issue, before the surrogate, the validity, construction, or effect of any disposition of personal property, contained in a will of a resident of the state, executed within the state, the surrogate must determine the question upon rendering a decree; unless the decree refuses to admit the will to probate, by reason of a failure to prove any of the matters specified in the last section.’ It is insisted that this language is mandatory; that under the terms of the section the surrogate is required to consider and determine every question which may be raised by any of the parties as to the construction or validity of the will, and that he is without power to reserve or postpone the consideration of such questions until they actually arise, and their determination becomes necessary to a proper disposition of the estate. We think that no such interpretation should be given to the section. The authority of the surrogate rests wholly upon statute. In 1870 (chapter 359, p. 826) the power was conferred upon the surrogate of the city and county of New York. By the Code of Civil Procedure it is conferred upon all surrogates in the state. Before these statutory enactments, while the surrogate necessarily had jurisdiction, for the purposes of distribution, to construe a will and decide on the validity of its provisions (Matter of Verplanck, 91 N. Y. 439), he had no power in advance of distribution or directions of payments from the estate, to adjudicate the effect or validity of the will. Actions for the construction of a will could be maintained only in courts of equity as ancillary to their jurisdiction over trusts, and the right to maintain such suits was subject to limitations and qualifications dependent on the nature of the testamentary disposition, and the attitude of the party invoking the court's action. Chipman v. Montgomery, 63 N. Y. 221;Wager v. Wager, 89 N. Y. 161.

The intention of the Code provision was to confer upon the surrogate power and jurisdiction similar to that theretofore possessed by courts of...