In re Walker's Will

• Decision Date: 29 November 1892
• Citation: 32 N.E. 633,136 N.Y. 20
• Parties: In re WALKER'S WILL.
• Court: New York Court of Appeals Court of Appeals

136 N.Y. 20

32 N.E. 633

In re WALKER'S WILL.

Court of Appeals of New York.

Nov. 29, 1892.

Appeal from supreme court, general term, second department.

Proceedings for the probate and construction of the will of Robert J. Walker, deceased. From an order of the general term (17 N. Y. Supp. 666) affirming a decree of the surrogate, admitting to probate and construing the will, Catharine E. Bond and the Home for Old Men and Aged Couples and another charity appeal. Reversed, except that part of the order and decree admitting the will to probate.

Matthew Hale and Edmund L. Baylies, for appellants.

Benjamin T. Ripton and Francis E. Dana, for respondents.

MAYNARD, J.

Upon a proceeding for the probate of the will of Rev. Robert J. Walker, deceased, before the surrogate of Kings county, three questions were submitted to the court for adjudication, and have been passed upon by it: First. Whether the testator was the owner, at the time of his death, of the moneys represented by deposits in various savings banks in New York city, Brooklyn, and elsewhere, aggregating over $65,000, and which are specially referred to in different provisions of his will. Second. Whether he was indebted, at the time of his death, to his daughter, Mrs. Catharine E. Bond, in the sum of $7,557, which represented the amount which he had, at various periods of his life, deposited in certain savings banks in his name, as trustee for his daughter, and which he had subsequently drawn out and converted to his own use. Third. Whether the legacies in the will, to the amount of $24,800, given to two charitable and religious societies, viz., the Home for Old Men and Aged Couples connected with the Protestant Episcopal Church in the city of New York, and the Protestant Episcopal Church Missionary Society for Seamen in the same city, must not abate to the extent to which they may be in excess of one half of the estate left by him after the payment of all just debts and the necessary expenses of executing the provisions of his will.

Upon each of these questions issues of fact were raised, and much extrinsic evidence given, and the surrogate finally decreed that the moneys so deposited did not belong to the testator when he died, and formed no part of his estate, but belonged absolutely to the several persons designated as the beneficiaries of the deposit in each case, and that the bank or pass books belonged to such persons, and the executors who might qualify were directed to deliver such books to them; and with respect to one deposit of $2,104, which stood to the individual credit of the testator, it was decreed that the moneys belonged to a grandson, and was no part of his estate, and that the grandson was entitled to the possession of the bank or pass book representing such deposit, and to the principal and interest thereof. It was further decreed that the claim made by Mrs. Bond to the moneys deposited by the testator as trustee for her, and subsequently withdrawn, should be disallowed, and that the total amount of the estate left by the testator was $26,464, and that the charitable and religious societies named could take only one half of this sum, after making the proper deductions for debts and expenses. This decree purports to have been made pursuant to the authority conferred upon the surrogate by the provisions of sections 2624-2626 of the Code of Civil Procedure, which provide, in substance, that, if a party to a proceeding for the probate of a will expressly puts in issue before the surrogate the validity, construction, or effect of any disposition of personal property contained therein, the surrogate must determine the question upon rendering a decree, unless probate of the will is refused, and enter a decree accordingly; and, if required by either party, he must enter in the minutes the grounds of his decision, and the decree is conclusive only upon the petitioner and each party who was duly cited or appeared, and every person claiming from, through, or under either of them. In their application to surrogates' courts generally, these provisions of the Code are new. They are, in substance, found in section 11, c. 359, Laws 1870, entitled ‘An act in relation to proceedings in the surrogate's court of the county of New York, and to the powers and jurisdiction thereof;’ but that act conferred much broader powers, for it declared that the surrogate should have the same power and jurisdiction as were then vested in and exercised by the supreme court to pass upon and determine the true construction, validity, or legal effect of any disposition of real or personal property contained in any will offered for probate before him in the proceeding for such probate. When the second part of the Code was adopted, the local act was repealed, and the authority extended in its abridged form to all the surrogates' courts of the state.

Whatever may have been the true interpretation of the act of 1870, we do not think that, under the provisions of the Code referred to, the surrogate had jurisdiction to hear and determine any of the questions submitted to him in the manner in which they are presented by the record under review. With respect to the legacies to the charitable and religious societies, no construction of the will and no...