
    Matter of Estate of Mathilde Zitzlsperger, Deceased.
    
      (Surrogate’s Court, New York County,
    
    
      December, 1914.)
    Wills—Construction op—Application by Executors and Trustees fob.-. Instruction as to Certain Duties—Code Civ. Pro., § 2615.
    An application by executors and trustees for the instruction and direction of the court as to how to proceed with duties imposed upon them by law is not one for the construction of a will within the meaning-; of section 2615 of the Code of Civil Procedure.
    An application by executors- and trustees asking for the construction: of a clause of the will of their testator wherein they were empowered-to pay the necessary expenses in keeping certain real estate, devised' to them in trust, in first-class condition, and whether s-aid clause authorizes them to make certain radical repairs or changes in the condition, of " two old-fashioned five-story tenement houses without improvements, arrange for occupancy by two families on each floor and a store on the ground floor, by installing ranges, 'boilers, white enamel basins and sinks which were not theretofore in the buildings, must be denied, as the-executors must act on their own responsibility in- the matter.
    
      Application pursuant to section 2615 of the Code of Civil Procedure for the construction of a will.
    Adolph E. Gutgsell, for petitioners Gottlieb Maier and George Pfaehler, executors.
    A. Welles Stump, special guardian, for Herman R. H. Krug, infant.
   Cohalan, S.

This is an application brought ■ on by citation pursuant to the provisions of section 2615 of the Code of Civil Procedure for a construction of the will of the above named deceased. Section 2615 of the Code of Civil Procedure provides that: An executor, administrator with the will annexed, or any person interested in obtaining a determination as to the validity, construction or effect of any disposition of property contained in a will, may present to the Surrogate’s Court in which such will was probated, a petition setting forth the facts which show his interest * * * and the particular portion ■of such will concerning which he requests the determination of the court.”

By the will of the deceased his executors and trustees, among ■other things, were given certain real estate in trust upon the following terms: To take full charge of my aforesaid real ■estate and judiciously manage and control the same, collect and receive all rents, issues and profits thereof, paying therefrom all taxes, assessments, Croton water rent or charges, interest ■on bond and mortgage, fire insurance and all other expenses accruing in keeping my said real estate in a first-class condition.” They were directed to pay and apply the net rents, issues and profits thereof toward the maintenance and education of Herman Krug, a grandson of the testator, until he arrived at the age of twenty-one years. Two of the parcels of real estate are old-fashioned five-story tenement houses without improvements, arranged for occupancy by two families on each, floor and a store on the ground floor. The average monthly rents for these parcels for the years 1909, 1910 and 1911 were $291; 1912, $282; 1913, $259; 1914, $232. The petitioners ask this court to construe the 16th paragraph of said will, wherein they are given power to pay the necessary expenses in keeping the premises in a first-class condition, and by its decree say whether or not this paragraph of the will authorizes them to make certain radical repairs or changes in the condition of the premises by installing ranges, boilers, white enamel basins and sinks, which improvements were not heretofore in the buildings;

The construction asked 'by the executors and trustees is not a construction of the will within the purview and meaning of the statute, and I am of the opinion that they will have to act upon their own responsibility in this matter. They are asking not for a construction of the will, but rather for the instruction and direction of this court as to how to proceed with duties imposed upon them 'by law when they assumed the responsibilities of executors and trustees.

Application denied.  