
    Frances H. Duclos and Ano., App’lt and Resp’t, v. Mary S. Benner, Individually, etc., App’lt and Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed July 9, 1889.)
    
    1. Wills—Action to construe—Jurisdiction—When not acquired.
    In an action for the construction of a will, a final judgment was entered. defining the rights of the parties. In such judgment it was provided that any of the parties were at liberty at any time thereafter, to apply to the court for other or further relief. In a subsequent petition, it was alleged that certain of the beneficiaries under the will having died without issue, a further construction was necessary. Some of the defendants appeared and filed answers, but there was no proof of service upon, or appearance by the executor of the testator. The court, without taking any proof of the iacts of the death of the cestui que trust, proceeded to construe the will as though such facts had been established. Held, that jurisdiction was not acquired, although the parties who appeared, admitted the facts necessary to be established.
    
      2. Same—New issues.
    
      Semble, whether under a general reservation of leave to apply for further relief, the court would have power to try new issues.
    Appeals from order made upon petition for the construction of a portion of the will of Hiram Benner, deceased.
    
      O. B. Smith, for pl’ffs; J. A. Shoudy, for def’ts.
   Van Brunt, P. J.

It is alleged by the petition of the plaintiffs herein that this action was commenced in November, 1878, for a construction of the will of Hiram Benner, •deceased, and that such proceedings were had, and that the will was construed and interlocutory judgment entered, and subsequently a final judgment, defining the rights of the parties. In such final judgment, it was ordered and adjudged that any of the parties to the action were at liberty at any time hereafter to apply to the court for further or other relief, as circumstances might require. It is further alleged in the petition that certain of the beneficiaries, under the will, having died without issue, a further construction of the will is necessary to determine the rights of the parties. Some of the defendants appear and file answ'ers to the petition. There is no proof of service upon, or appearance by one of the defendants, Frank M. Benta, either individually or as executor of the last will and testament of Hiram Benner, deceased.

The notice of motion is not addressed to said Benta as executor, and he is, therefore, only made a party to this proceeding as an individual, Landon v. Townshend, 112 N. Y., 93; 20 N. Y. State Rep., 223. His presence as executor was absolutely necessary. There is no proof even that Benta, as an individual, has been served. It is true that the papers contain what purports to be an admission by Benta, as an individual, of such service, but his signature is in no way proved. It may be claimed that the affidavit of Joseph M. Duelos proves such signature, but such method of proof of the execution of papers is in no way recognized by statute.

The court, without taking any proof of the facts alleged, then proceeded to construe the will as though such facts had been established. Even if the court could acquire jurisdiction by such a proceeding, all the necessary parties were not before it, as we have seen, and the facts which it was necessary to establish had not been proven. It yvas not sufficient chat the parties who appeared admitted them. The court was bound to take proof of the facts of the deatii of the cestui que trust, and tnat he died without issue, at least, and this proof could not be supplied by auy admission, because the right of the parties appearing to admit anything depended upon the existence of these facts. Furthermore, it is doubtful whether the court could acquire jurisdiction in this summary manner to enter upon a new field, of discussion and upon the determination of new issues.

The right to apply at the foot of the decree ordinarily appertains only to the carrying out of the determination which the court, by the decree, has made, and does not relate to the trial and investigation of new issues not embraced within the original action. Whatever directions it might be necessary for the court to give, to carry out its decree form the fitting subject of an application at the foot of a decree.

. By the insertion of the clause in question the court does not seem to have acquired any greater power than has long been the practice of the court of chancery to exercise.

It,has always been the practice of a court of equity to hear applications at the foot of its decrees, in reference to the matters embraced within the decrees and adjudicated upon therein. If the court had desired to have reserved any particular question for future consideration, it might possibly have done so by making a reservation in the decree to that effect, but under a general reservation of leave to apply for further relief, it seems to be extremely doubtful that the court would have the power to try new issues.

In any event, in the case at bar, the proper parties were not before the court, and there was no proof before the court which could possibly authorize it to act.

As has already been said, the court should have required legal evidence of the death of the cestui que trust without issue, and not have relied upon the mere naked allegation in a petition, even though admitted by a so-called answer.

The order appealed from should be reversed and the petition dismissed, without costs.

Daniels and Brady, JJ., concur.  