
    William Hovey, individually, etc., App'lt, v. Malinda R. Purdy et al., Resp'ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 18, 1887.)
    
    1. Will—Construction of—Who cannot maintain action fob.
    An action for the construction of a will cannot be maintained by a legatee or devisee.
    2. Same—When permitted.
    Such an action is permitted for the guidance and direction of executors and trustees, and the controversy now may by statute be determined in an action contesting a will for the partition of real estate.
    Appeal from a judgment recovered at the special term.
    
      C liarles H. Luscomb, for app’lt; H. B. Claflin, for resp’ts.
   Daniels, J.

The wife of the plaintiff was a daughter of Augustus Purdy. Prior to the time of her decease she made and executed a will by which she devised to her husband all her right, title and interest "to the personal property and real estate belonging to and left by her father, and to all moneys or income which might be or become due to her from the-estate of her father. Her rights and • interests in the property of her father were declared and defined by his will, and the object of the plaintiff’s action was to obtain a construction of this will so far as to determine what he might be entitled to under it as the devisee and legatee of his deceased wife. That such an action cannot be maintained for the construction of a will by a legatee or devisee has been quite clearly settled by the authorities. Sutherland v. Ronald, (11 Hun, 238); Weed v. Weed, (94 N. Y., 243), and Wager v Wager, (89 N. Y., 161), are authorites maintaining this rule-of law against the plaintiff. There is no well settled principle sanctioning such an action in his behalf. It has been permitted for the guidance and direction of executors and trustees, and the controversy now may by statute be determined in an action contesting a will for the partition of real estate. The case was properly disposed of at the special term, and the judgment should be affirmed with costs.

Van Brunt, P. J., and Brady, J., concur.  