
    Albert I. Adams, App’lt, v. Lucretia Becker et al., impleaded, etc., Resp’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 1, 1888.)
    
    Will—Construction of—Jurisdiction of supreme court—Action to. ESTABLISH, ETC., WILL RELATING TO REAL PROPERTY—CODE CÍV. PRO.,, § 1866.
    The complaint in an action for the construction of a will alleged the death of the testator and the admission of the will to probate before the commencement of the action. That the plaintiff, son of testator, and the defendant, his wife, surviving the testator, were the only next of kin and heirs at law. Plaintiff at the death of testator was a minor, but at the time of this action was of full age. The plaintiff and defendant were in possession of the real estate and the avails of the personal estate. The terms and provisions of the will were neither plain nor simple. By his will the testator sought to devise the title to his real estate, or some interest therein, to other persons than his heir at law, and if the disposition thus made is upheld as valid, it will deprive the heir of an estate therein, which would have descended to him had the testator died intestate. Held, that, the relation of the plaintiff to the testator and the terms of the will were such as to make a case within Code Civil Procedure, section 1866, and gave the supreme court jurisdiction on the application of the heir at law to interpret the will and adjudge whether any of several devises are void, and if none of them were, what was the nature and character of the interest of the several devisees in the real estate of which the testator died seized. Hovey v. Purdy, 10 IT. T. State Rep., 40, distinguished.
    Appeal from a judgment dismissing the plaintiffs complaint entered upon the report of a referee. The action is. to secure a construction of the last will and testament of' Albert Adams, deceased, disposing of both real and personal, estate. The disposing clause of the will is as follows %. “After the payment of all my honest debts and funeral expenses, I give and bequeath to my wife, Cynthia W. Adams, the use of one-half of both my real and personal property, together with the entire household furniture, etc., during her lifetime. I give the balance of my estate, both personal and real, to my son, Albert I. Adams, at his majority, and in case my son dies without issue, then I giveiny entire estate to my brothers, Ashel B. Adams, Isaac; Adams and Willis Adams, and my sister, Lucretia Becker, to share and share alike. I also give to my father, Willis. Adams, during his lifetime, the use of the house, bam and. garden where he is now living. * * * In case my son Albert dies before my wife Cynthia, then I give ana bequeath. the .use of three-fourths of my entire estate to my wife during her lifetime, and the use of the remainder to my brothers and sister aforesaid.”
    
      A. J. Abbott, for app’lt; Hubbard & Coyne, for resp’ts.
   Barker, J.

The complaint was dismissed on the sole ground that the court did not possess jurisdiction to try ■ and determine the question presented. In the conclusions -of law stated in the report the finding is as follows: “ There being no trust created by the will, there is nothing alleged in the complaint which entitles the plaintiff to call upon the court for the exercise of its equity powers, and therefore the complaint should be dismissed for want of jurisdiction.” The parties stipulated that the allegations of fact set forth in the complaint were true, and upon these facts the legal question upon which the complaint was dismissed is based.

It is alleged in the complaint that the testator died in 1872, and before the commencement of this action the will was admitted to probate. The plaintiff, his son, and the defendant Cynthia, his wife, survived the testator, .and were the only next of kin and heirs at law. At the time of the death (of the testator the plaintiff was a minor .and at the time of the commencement of this action was of full age. Letters of administration, with the will annexed, were issued to the widow and one Charles A. Coykendall, who, prior to the commencement of this action, had a final ¡settlement of their accounts before the surrogate, and there was then found in their hands as the proceeds of the personal estate the sum of $1,339.21. The real estate owned hy the testator consisted of a farm of one hundred and thirty acres, of the value of $6,000, and the house and lot mentioned in the will as occupied by Willis Adams, of the value of $400. The plaintiff and the defendant Cynthia, the widow, are now in the possession of the real estate .and the avails of the personal estate, but the nature and character of such possession and the mode and manner of their enjoyment does not appear by the record. All the legatees and devisees áre made parties. The administrator Coykendall is not a party, nor is there any allegation that .any of the personal property or the proceeds thereof were .in his hands, as administrator, undistributed.

The disputes, controversies and doubts existing between the parties and the claims made by them respectively as to their rights and interests as devisees and legatees under tho will are stated in the complaint as follows: "In viewoi* "the peculiar language of the said will and the uncertain, imperfect and conflicting provisions thereof, this plaintiff and the other parties to this action have doubts and conflicting opinions as to the true construction of the said will, and their respective rights and interests thereunder, and whether the same is void or valid, in consequence of all which the premises in this regard the said estate is under a cloud, and the value thereof and the title thereto uncertain.

The heir-at-law does not claim, that the will is invalid for the reason that the testator did not possess testamentary capacity, nor because the will was not executed in the form and manner required by law, or that it was procured by fraud or undue influence. He only seeks a construction of the provisions of the will, that it may be determined by the judgment of this court to what extent, if any, they affect his title to the real estate which would have descended to him as the sole heir of the testator had the latter died intestate. The pleadings do not state the claims made by the respective parties to the real estate as demised under the will, nor wflierein they disagree as to the proper construction to be given to the several provisions thereof.

The terms and provisions of. the will and the rights and interests which the respective parties have acquired in the real estate, are not so plain and simple as not to require a construction with a view of ascertaining their precise meaning by some one familiar with the law relative to such matters. The lay mind could not readily, and perhaps not correctly, determine the legal effect of the several provisions of the will and be able to inform the respective legatees and devisees, concerning their true rights and interests.

As the complaint was dismissed for want of jurisdiction under the subject-matter upon the facts admitted, that is the only question which requires consideration on this appeal. I am of the opinion that the court possessed ample jurisdiction to determine in this action upon the admitted facts, and to finally adjudicate as between the parties, as to the validity and effect of the several clauses of the will, relative to the disposition of the real estate, and that the same was conferred by the provisions of section 1866, of the Code of Civil Procedure. The words of the statute are very broad and comprehensive in their meaning, and no doubt -can be entertained, as to the intention of the legislature, in authorizing an action to be prosecuted for the purpose therein stated. It is declared, that the validity, construction and effect of a testamentary disposition of real estate, or any interest in such property which would descend to the heirs of an intestate may be determined in an action for the purpose, in like manner as the validity of a deed conveying land may be determined.

The title to the real estate in question would have descended to the plaintiff as the sole heir au law of the testator had he died intestate. By his will the testator sought to devise the title to his real estate, or some interest-therein, to other persons than his heir at law, and if the disposition thus made is upheld as valid, it will deprive the heir of an estate therein, which would have descended to-him had the testator died intestate. The relation of the plaintiff to the testator and the terms of the will are such as to make a case within the provisions of the statute and give this court jurisdiction on the application of the heir at law, to interpret the will and adjudge whether any of several devises are void, and if none of them are, what is-the nature and character of the interest of the several devisees in the real estate of which the testator died seized. If such be the true construction of the law, its beneficial operation is made apparent, as in many cases it will enable-interested parties to secure a settlement of all disputes and controversies, as to the title to real estate, which may arise-under a testamentary disposition of the same, although the party instituting the suit may be at the same time, in the actual possession and enjoyment of the property. Prior to this enactment, it was a fixed rule of the court, in defining its jurisdiction, that an heir at law or a devisee who claimed a mere legal title to the real property, when there was no trust, could not come into a court of equity for the mere purpose of obtaining a judicial construction of the provisions of a will, but must assert his title by legal action, or, if in possession await an attack upon his title by some one who made a hostile claim. Reed v. Reed, 52 N. Y., 651; Chipman v. Montgomery, 63 id., 230.

The reported cases bearing upon the question are in support of a construction of statute which gives the court jurisdiction in a case like the one before us. Marvin v. Marvin, 11 Abb. P. Rep. [N. S.], 102; Jones v. Jones, 1 How. Pr., 310; Wead v. Cantwell, 36 Hun, 528; Wager v. Wager, 23 id., 439; De Bussierre v. Holladay, 55 How. Pr., 220; Drake v. Drake, 41 Hun, 366.

The enlarged jurisdiction conferred upon the court is gen eral, without designating whether the action shall be tried, as one at law or in equity. The issues of fact in such an action may be tried by jury or by the court as the nature of the case may require or the court direct. As the facts were admitted, the right of the parties based thereon presented mere legal questions, which should have been determined by the referee, and if the complaint was found to be defective because it omitted to state wherein the several devises-were void, or as to the construction which the plaintiff claims should be given to the provisions of the will, the same should have been amended on the hearing so as te •conform to the legal rights of the parties as determined on the trial.

The case of Hovey v. Purdy (10 N. Y. State Rep., 40), is not in conflict with the views which we entertain or with .any of the authorities cited. In that case, the plaintiff was not an heir at law or a devisee under the will which he sought to have the court place a construction upon.

We do not, at this time, consider whether in this action the court can determine the rights of the parties in the personal estate or not, as the facts bearing upon that question are not sufficiently stated in this record.

Judgment reversed and a new trial granted before another referee, unless the parties consent that the re-trial take place before the one already appointed.

Costs of this appeal to abide events.

Smith, P. J., Haight and Bradley, JJ., concur.  