
    William J. Kelley, as Substituted Trustee under the Last Will and Testament of Priscilla W. Pike, Deceased, and Ralph W. Maverick, Plaintiffs, v. Sarah M. Hogan, Defendant.
    
      Submission of a controversy —it must allege that a controversy exists, and ask that a judgment determining it be granted, — additional statement, when not allowed.
    
    The court will not consider what purports to be a submission of a controversy upon an agreed statement of facts pursuant to sections 1279-1281 of the Code of Civil Procedure, where such statement of facts does not allege that a controversy exists between the parties, and the submission does not ask that a j udgment determining such controversy be granted. The court will not permit the parties to file an additional statement under section 1281 of the Code of Civil Procedure, when it appears that persons whose presence is necessary to enable the court to grant any judgment have not been made parties to the submission.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 1219 of the Code of Civil Procedure.
    
      Peter A. Shell, for the plaintiffs.
    
      Arthur H. Wadiclc, for the defendant.
   Ingraham, J.:

The parties to this action have, submitted what purports to be a case containing a statement of facts, upon which there is submitted a controversy under sections 1279, 1280 and 1281 of the Code of Civil Procedure.

There is no statement in the submission that there is a controversy between the parties which might be the subject of an action. We might surmise that the parties intended to ask the court the question whether the plaintiff Kelley, the substituted trustee under the last will and testament of Priscilla W. Pike, is entitled to the possession of this property during the continuance of the trust; or whether, under the will of Priscilla W. Pike, a fee vested in Sylvester M. Pike, which descended to the defendant as his heir at law, but the fact that such a controversy between the parties exists is nowhere stated, nor. does the submission' ask that a judgment determining such a controversy be. granted. A formal answer to the questions which the court is asked to decide would not necessarily result in a judgment which would determine the rights of the parties to this submission. We think that, before the court can be called upon to decide the questions presented upon such a submission, there must be presented a statement of a controversy actually existing between the parties, upon the determination of which a judgment, that the court has jurisdiction to grant in an action brought to determine such a controversy, can be granted. Section 1280 of the Code provides that upon the filing of such a. submission the controversy becomes an action, and that each provision of law relating to a proceeding in an action applies to the subsequent proceedings therein, except as provided by section 1281. Under the last clause of section 1281 the court is authorized, in case the statement of facts is not sufficient to enable the court to render judgment, to permit the parties to file an additional statement, and that course might be adopted in this case, were it not for the fact that the heirs at law' of Priscilla W. Pike are not parties to the submission and their presence is necessary to enable the court to grant any judgment.

Priscilla W. Pike died, owning a fee in a certain parcel of land described, which she disposed of by the following provision of her will: First. “ I give and bequeath to my brother Calvin Pike in trust all my real estate,” which is there described. Second. “ The said Calvin Pike is to take- the said property in trust for the benefit of my brother Sylvester M. Pike during his absence in foreign parts, and is to deliver up to him the entire possession and control thereof whenever the said Sylvester shall require him to do so; but in case my brother Sylvester should not survive me, or in case he should not claim of my said trustee the said property, or in case he should die in the possession of it without disposing of the same by will or deed, then my said trustee is to hold the said property in trust under this will for the benefit of my relative Ralph W. Maverick, now a minor, to be applied by said trustee for the maintenance of said Ralph and for his education and to fit him for some useful occupation.”

Sylvester M. Pike returned from “ foreign parts ” and demanded from the trustee the “ entire possession and control ” of the property mentioned in the 1st paragraph of the will; and in pursuance of such demand, and to carry into effect the provisions of such will, the said Calvin Pike, as trustee, executed an instrument which, after reciting the will and the return of and the demand by the said Sylvester M. Pike, provided: “Row therefore be it known to all whom it may concern that I, Calvin Pike named in said will as trustee aforesaid for the purpose of carrying out the provisions of the said will as hereinbefore set forth according to the true intent and meaning thereof, and in consideration of the sum of one dollar to me paid, have surrendered, delivered and given up, and do hereby surrender, deliver and give up to the said Sylvester M. Pike full, entire and complete possession, occupancy and control of the property above described and every part and parcel thereof to be his absolutely and forever.”

Sylvester M. Pike entered into possession of this property under this instrument, and subsequently sold a portion of the property described in paragraph 1st of the will as the “ place at Lake Grove in the said town of Brookhaven.” He died in the city of Rew York on the 21st day of January, 1896, without having disposed of that portion of the property described in the will as “lot Ro. 1266 (a quarter of an acre) in Wakefield, Eastchester Township in the County of Westchester, State of Rew York; and also lots Ros. 16 and 116 Gores) in Westchester, Westchester County, aforesaid; ” leaving him surviving Sarah M. Hogan, the defendant, as his only heir at law and next of kin.

The real question presented under this will seems to be to whom upon the death of Sylvester, without having disposed of this property by will or deed, the property passed. It does not appear wlio were the heirs at law of the testatrix, and they were not made parties to this submission. If the devise to Sylvester was only a life estate, with power of disposition, then upon the death of Sylvester, • without haying disposed of the property either by will or deed, the property either passed to the trustee,- in trust for the benefit of Maverick, or descended to the heirs at law of the testatrix. Before it can be determined whether the heirs at law have an interest in this property, either immediately upon the death of Sylvester, dr upon Maverick arriving at the age of twenty-one, or upon the death of Maverick, the heirs, at law are entitled to be heard, and the question cannot be determined without their presence.

It follows, therefore, that the proceeding must be dismissed, without costs.

O’Brien and Hatch, JJ., concurred.

Van Brunt, P. J. (concurring):

The papers upon.this alleged submission are so faulty that it does not seem to me that it deserves any consideration. There is no compliance whatever with the statute. Ho controversy between these parties is in any way stated. The proceeding should be dismissed, with costs against the plaintiSs.

Proceeding dismissed, without costs.  