
    Matter of the Probate of the Last Will and Testament of Harriet D. Talmage, Deceased.
    (Surrogate’s Court, Kings County,
    April, 1908.)
    Wills — Interpretation and construction — Actions and proceedings to judicially construe will — Statutes — Construction incidental to probate — Code of Civil Procedure, § 2624 — Authorizes construction as to application of ch. 360, L. i860."
    The surrogate has power, and it is his duty, under section 2624 of the Code of Civil Procedure, when the issue is raised, to construe a will as to the question of the application of chapter 360 of the Laws of 1860, limiting devises and bequests to charitable and other corporations; but, where the decedent has no husband, wife, child or parent, the statute may not be invoked for the benefit of relatives more remote.
    Proceeding upon the probate of a will.
    Louis N. Rowley (Walter Large, of counsel), for proponent.
    Parm C. Gilbert, for Ira Talmage, an heir at law.
    John M. Zurn, special guardian.
   Ketcham, S.

In the proceeding to prove the will the special guardian for nephews and nieces of the decedent has filed objection that the will violates chapter 360 of the Laws of 1860, which enacts that “ Ho person having a husband, wife, child or parent shall by his or her last will and testament devise or bequeath to any charitable, etc., corporation * * * more than one-half of his or her estate.”

The objection of the executor that the will cannot be construed with respect to the question of the application of the act cited is overruled. Objection by the special guardian was properly made under section 2624 of the Code and expressly puts in issue the validity of the disposition of the estate.

It appears that the decedent left no husband, parent or children; and it is, therefore, impossible that her will has violated the provisions of the above statute. It is true that in the case of Robb v. Washington & Jefferson College, 185 N. Y. 485, it was held that nieces could present the objection suggested by the statute. It has not been held, either in that case or elsewhere, that the statute embraced within the relatives designated any persons more remote in relation than “husband, wife, child or parent;” and it is not easy to see that a distribution of one-half of the decedent’s estate to charitable or other corporations is affected by any statutory provision intended for the protection of nephews and nieces.

The objection is overruled.  