
    Peter Garlock, Ex’r, App’lt, v. Ella Vandevort et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed October 6, 1891.)
    
    1. Will—Power oe surrogate to construe.
    A surrogate has power on the settlement of an executor’s accounts to construe a clause of the will declaring that he is not indebted to any of his children and providing tint any testamentary gift to a child presenting a, claim against the estate should be void, and to determine whether such, clause applied to a child who presented a claim which was ultimately allowed.
    2. Same—Action to construe—When will not lie—Costs.
    Pending proceedings for settlement of accounts in which such question arose, and after a holding by the referee therein that the surrogate had no jurisdiction to hear that issue, but before the surrogate had ruled thereon,, this action was brought to construe said clause in the will. Held, that the surrogate had concurrent jurisdiction with the supreme court to determine the question, and having first obtained jurisdiction was entitled to retain it, and that the complaint was properly dismissed_ and the plaintiff charged with the costs.
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment entered on dismissal of complaint.
    
      E. K. Burnham, for app’lt; T. H. Bennett, for resp’ts.
    
      
       Affirming 33 N. Y. State Rep., 1035.
    
   Gray, J.

The plaintiff sets forth in his complaint two grounds for bringing this action to obtain a construction of the will of Thomas Yandevort, deceased. The one sought to raise a question as to the residence of a grandchild, as bearing upon her capacity to be a legatee of certain property, and the other related to a clause-of the codicil nullifying bequests and devises, in the event of any of the testator’s children presenting to his executors claims against the estate, other than for the bequest or devise given in the will, practically speaking, cutting off the child in such an event. At the time this action was brought there was pending in the surrogate’s court, and undetermined, a proceeding instituted by this plaintiff’s co-executor for a judical settlement of his accounts, into which were brought all persons in interest and who are now made the parties to this action.. Objections were there filed by this plaintiff, and other parties, to the executor’s accounts, which raised inter alla the precise question which this complaint raises •concerning the effect of the clause in the .codicil above mentioned.

The first question in the complaint arises out of that portion of testator’s will in which he gave to his “ grandchildren living in Michigan at his decease all his real and personal estate * * *

in Michigan.” The complaint questions the right of one of the grandchildren to be a legatee as to such portion of the estate; but the point was not argued in the appellant’s brief and seems to have been abandoned. It could not well be pressed, as constituting any ground for invoking the equity .jurisdiction of the supreme court. Whether the particular grandchild was a resident of Michigan or not was a question of fact, and one which the surrogate could perfectly well dispose of. The issue mainly contested in the surrogate’s court, and which is relied upon now, was as to the right of the defendant Gilbert Vandevort, a child who prosecuted a claim against the estate, or of his descendants, to receive any share under the will.

The claim had been disputed, but, being allowed, had been paid by the executor. This fact was insisted upon before the surrogate as avoiding the child’s interest under the will by force of the provision of the clause of the codicil referred to. The learned judge at special term decided that the action was not brought in good faith, and that the questions involved were within the jurisdiction of the surrogate to determine, and he, therefore, dismissed the complaint, charging the plaintiff personally with the costs. This disposition of the case, I think, we must all agree to have "been a correct and just one.

There is no question but that the supreme court could entertain jurisdiction of an action brought by an executor to determine the force and validity of such a provision in a will, but it is not "an exclusive jurisdiction. , The surrogate had the power, as well, to construe the will in that respect. Though a judicial officer with limited and prescribed jurisdiction and powers, yet it is not open to question that in a proceeding before him, having for its object the settlement of an executor’s accounts and to obtain a decree directing the distribution of the fund in his hands, and with ail ' the parties in interest present, the surrogate may construe the provisions of the will and determine the meaning and validity of any of them, whenever such a determination is necessary in order to make his decree as to distribution. Such a jurisdiction is, of •course, not general, but it is one which is incidental to his office, and which flows clearly from the authority conferred upon him by the statute. See $ 2472 of the Code of Civil Procedure. ■Subdivisions 3, 4 and 5 of the section of the Code cited would Iiave but little meaning and force if such a judicial exercise of the surrogate’s authority were not impliedly granted. It is quite unnecessary to discuss this question at any length, for that has been already done in cases where it has arisen under the provisions of the Code of Civil Procedure and under the provisions of the Revised Statutes. It is sufficient to refer to the cases of Matter of Verplanck, 91 N. Y, 439, 449, and of Riggs v. Cragg, 89 id., 479.

The question here for the surrogate to determine was whether the presentment by and the ultimate allowance to a child of a claim against the estate precluded him from taking his share of his father’s estate, under a clause of his will which recited that he was “ in no wise pecuniarily indebted to any of his children,” and proceeded to declare null and void a testamentary gift to the one presenting a claim. This situation required of him a decision as to whether the clause applied to such a case, and whether it was valid and enforceable. The present is unlike those cases where the issue raised was not as to the validity or meaning of the testamentary provisions; but involved the validity of some deed or agreement, to affect the legatee’s interest. Nothing of the kind appears here; for whether Gilbert Yandevort could take or not depended upon the surrogate’s decision as, to what effect, if any, should be given to the particular clause of the codicil. The surrogate’s jurisdiction was equal to and concurrent with the supreme court, and, following the well established rule in such a case, the surrogate’s court,, as the tribunal which first obtained jurisdiction of the subject matter and of the persons, retained and should continue to exercise that jurisdiction. Schuehle v. Reiman, 86 N. Y., 270.

I do not think it was error, or any abuse of discretion, for the court below to charge the costs upon the plaintiff personally. Of the two questions propounded in the complaint for determination, the one concerning the residence of the legatee was frivolous, inasmuch as the legacy had already been paid over and the question was one merely of fact. The other issue tendered, as to the effect of the clause of the codicil, was at the time pending before and undetermined by the surrogate. To his jurisdiction in the matter no objection had been made by this plaintiff. His action was begun upon the surrogate’s referee holding that the surrogate had no jurisdiction to hear the issue; but before the surrogate had passed on the referee’s-report. There does not seem to have been any necessity, nor any good ground for invoking the jurisdiction of the supreme court, and thereby delaying the proceedings before the surrogate and burdening the estate with further expenses of litigation; and I think, under the circumstances, that the discretion of the court below was very properly exercised, and that it should not be interfered with by us.

The judgment below should be affirmed, with costs to be paid by the appellant personally.

All concur, except Finch, J., absent.  