
    In the Matter of the Estate of Enoch Marcial, Deceased.
    
      (Surrogate’s Court, Chautauqua County,
    
    
      Filed May 21, 1891.)
    
    1. Will—Poxver op surrogate to construe will op real estate.
    The surrogate’s court has jurisdiction to give judicial construction to a will of real estate.
    
      2. Same—Perpetuities.
    The testator died seized of one hundred acres of real estate, and owned no personal property. He left five children and three grand children, heirs-at-law, all of full age. He appointed his son Martin Marcial executor, and in terms devised his real estate to him and to his, Martin’s, four sons, aged respectively ten, seven, four and two years at date of will, September 11, 1889. as follows: The use of it to his son, Martin, until Martin’s oldest son should be thirty years old, and then such son to have the title. In case such son should die before being thirty years old, then said Martin to have the use of the land until said Martin’s next oldest^ son should he thirty years old, but in case such son should die before arriving to that age, then said Martin should have the use until his next .oldest son should be thirty years old, but in case of his death before that age, then said Martin should continue to have the use of the land until his next oldest son should arrive at the age of thirty years, and so on, untü the oldest live son of said Martin should become vested with the title to said land. Held, that such will was void under the Revised .Statutes relating to perpetuities.
    The testator, Enoch Marcial, died January 31, 1890 leaving two sons, three daughters and three grandchildren, his only heirs-at-law, and owning a farm of one hundred acres, worth $3,000, situate in the town of Mina in said county, on which he resided at his death, and leaving no personal property. He made his will, dated September 11, 1889, and appointed his son Martin Marcial sole executor, who then had four sons living, who were grandchildren of the testator, of the ages respectively of ten, seven, four and two years.
    The learned counsel for the proponent, Martin Marcial, and also the counsel for the eight heirs-at-law of the decedent, contestants herein, requested the surrogate to give judicial construction to the instrument propounded as and for the last will of the deceased, as to whether or not the same was a valid instrument to convey the legal title of such land to the legatees therein named under the provisions of the Eevised Statutes relating to perpetuities, against suspending the power of alienation during a longer period than the continuance of .two lives in being at the time of the creation of the estate, neither counsel making any suggestion as to the jurisdiction of the surrogate in the premises.
    The following is a copy of the material parts of such instrument:
    “I, Enoch Marcial, of Mina, ¡N". Y., aged eighty-one years, declare this to be my last will and testament, that is to say :
    
      “First. After all my lawful debts are paid and discharged, I give and bequeath to my son Martin Marcial the use of one hundred acres of land in said town of Mina (describing it) until Ira Marcial, son of my said son, Martin Marcial, becomes thirty years of age, and in case of said Ira’s death before arriving at the age of thirty years, then said use of -said 100 acres of land_ continues to Mai’tin Marcial until the next oldest son of said Martin Marcial arrives at the age of said thirty years, and so on until the oldest live son of said Martin Marcial arrives at the age of thirty years. Upon said Ira Marcial’s arriving at the age of thirty years the title of said 100 acres of land is to vest absolutely in said Ira Marcial, or in case of said Ira’s death before arriving at the age of thirty years then said title is to vest absolutely in said next oldest son on arriving at the age of thirty years, and so on until the oldest live son of said Martin Marcial shall become invested with the title to said 100 acres of land. It is understood that the use of said 100 acres of land is to be expended by said Martin Marcial in the schooling and education of his children until the title to said 100 acres of land vests as aforesaid.
    “ Likewise I make, constitute and appoint my said son Martin Marcial to be executor of this my last will and testament.”
    Such instrument was duly signed by the testator and witnessed and proved to have been duly executed, and that the said testator •was of sound mind when making said will, and under no restraint.
    
      Walter L. Sessions, for the proponent.
    The will does not give Martin Marcial a life estate in the land, but only the use until his oldest son is thirty years old, so there is no suspension of the power of alienation during Martin’s life, or during the life of either of his sons. 4 R. S., 8th ed., 2432, § 15; Fowler v. Depau, 26 Barb., 224; Savage v. Burnham, 17 N. Y., 561. Martin, the father, may work the land for years. The boys are alive and the one first of age takes the fee. No trust is created for lives unborn.
    
      Van Dusen & Martin, for contestants.
    The testator attempted to create a certain future contingent estate, by a devise to his grandson, Ira, providing he should live to be thirty years old, with the life estate in his son Martin during such limitation. That Ira would live to such age was uncertain. 4 E. S. 2432, § 13. Future estates are void in their creation, which suspend the power of alienation longer than during the continuance of two lives in being at the creation of the estate. E. S., supra, § 15. Alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed. E. S., supra, § 14. The instrument attempted to create future estates in the grandchildren, with a dependent life estate in their father in contravention to the above statute and is void. Jennings v. Jennings, 7 N. Y., 547; Hawley v. James, 16 Wend., 61; Beekman v. Bonsor, 23 N. Y., 314; Schettler v. Smith, 41 id., 328; Knox v. Jones, 47 id., 389; Colton v. Fox, 67 id., 348; Smith v. Edwards, 88 id., 92 ; Crooke v. County of Kings, 97 id., 421; Ward v. Ward, 105 id., 68, 74; 6 N. Y. State Rep., 798. Such estates must be so limited that in every possible contingency they will absolutely terminate at such period or be held void. Haynes v. Sherman, 117 N. Y., 433; 27 N. Y. State Rep., 254; Lewis on Perpetuities, 170; Hawley v. James, supra; Schettler v. Smith, supra. In this case both the life estate and the remainder are void ; the principal devise failing, all fail, giving effect to above §§ 14, 15, 17 and 19, E. S., 2432. Amory v. Lord, 9 N. Y., 403, 413, 419 ; In re Wood's Estate, 7 N. Y. Supp., 436.
   Sherman, S.

I am of the opinion that the instrument produced as the last will of Enoch Marcial is utterly void, under the statute of perpetuities, and the authorities cited by the learned counsel for the contestants; that it is not a valid will to pass title to real estate. It suspends the power of alienation beyond the continuance of two lives in being at the creation of the estate. It attempts to create contingent estates to at least four lives in being. The fee of the land may never vest in any of the four grandchildren, nor in any other grandson of the testator that might be born after the date of the alleged will. The four living grandchildren can convey no legal title, because they are not heirs at law, and as legatees the title might not vest in any one of them, or in any other after born son of Martin Marcial until after the death of four persons in being at the creation of the estate, September 11, 1889.

The important question to be considered is whether the surro: gate court has jurisdiction to give construction to this instrument upon the consent and request of all the parties interested. Such request cannot give the court jurisdiction in the premises. If it exists, it must be found in the several provisions of the Code of Civil Procedure, statutes of this state, and decisions of the courts relating thereto. I have carefully examined these and have come to the conclusion that each surrogate court of this state has jurisdiction to give construction- to wills on probate, relating to both real and personal property. That it has such jurisdiction as to wills of personal property there can be no doubt. Section 2624 of the Code not only grants it, but positively requires such courts to determine the question in making decrees in cases of residents of the state owning personal property therein.

In most cases wills requiring construction on probate relate to both real and personal property, and the questions involved are the same, and generally the value of the personal property involved largely exceeds that of the real. The surrogate court has undoubted jurisdiction to construe that part of wills relating to personalty, and it has been claimed that the supreme court only can in the first instance construe parts of such wills that relate to the realty, thus necessarily constituting two parallel lines of litigation, in two courts, under the same will, upon the same identical questions as to construction, with the chances that -the decision of the highest court will on appeal be first rendered upon the construction given in the surrogate court relating to the personalty.

It is not credible that the learned codifiers of the Code of Civil Procedure, and the legislature, ever intended to create such an anomaly. • On the contrary, is not the presumption reasonable that they should have endeavored to assimilate the practice and jurisdiction of these courts, in the important matter of probate of wills of real and personal property, by adopting a harmonious and symmetrical system, avoiding unnecessary costs and delays, and so conserve the rights of litigants ? I think that a careful examination of the history of legislation on this subject shows that the latter course has been adopted by giving surrogate courts jurisdiction to construe wills of both real and personal property, on probate, the same as has been given on settlement of estates, and was given to the surrogate court of the county of Rew York by chap. 359, Laws 1870, § 11, the same as possessed by the supreme court; which act was repealed by the provisions of the Code that went into effect September 1, 1880, and such provisions of the Code were substituted therefor.

The case of Marx v. McGlynn, 4 Redf., 455. was decided by Calvin, surrogate of the county of New York, in August, 1880, a few days before §§ 1866, 2622, 2623, 2624, 2625, 2626, 2627, 2628 and 2629 of the Code, extending the jurisdiction of the surrogate courts on probate of wills, and recording same, went into effect, and while the act of 1870 was in full force. The learned ex-surrogate, Calvin, says in the above case that his predecessors had never recognized the authority conferred by that act, and in that case he only gave construction to that part of the will relating to personal property, and referred the parties interested to suit in the supreme court, for their remedy as to the realty, saying that § 2624 of the Code, giving surrogate courts jurisdiction to construe wills of personal property on probate, might be regarded as a legislative expression of opinion that such jurisdiction should not be exercised over wills of real estate.”

I have been unable to find any reported case in which the surrogate court of New York ever gave construction to any will relating to either personal or real property under the act of 1870, except the one above cited, during the decade preceding September 1, 1880, when the Code went into effect

In construing the above sections of the Code, the first and an important one to be considered is § 1866, which is as follows:

“ The validity, construction or effect, under the laws of the state, of a testamentary disposition of real property, situated within the state, or of an interest in such property, which would descend to the heir of an intestate, may be determined in an action brought foi; that purpose in like manner as the validity of a deed, purporting to convey land, may be determined. * * * But this section does not apply to a case where the question in controversy is determined by the decree of a surrogate's court, duly rendered upon allegations for the purpose, as prescribed in art 1 of tit. 3 of chap. 18 of this act, where the plaintiff was duly cited in the special proceeding in the surrogate’s court before the commencement of the action.”

It will be noticed that this section relates only to wills of real property; and that the last sentence of the section states that such section does not apply to a case where the question in controversy, i. e., relating to wills of real property, is determined by the decree of the surrogate court, duly rendered upon allegations for that purpose, as prescribed in art. 1, tit 3, chap. 18, of this act (being the sections of the Code above cited), where the plaintiff was duly cited in the special proceeding in the surrogate court before the commencement of the action.

Commissioner Throop says in his note to above section: “ The provision has been expressly confined to real property within the state, and to questions arising under the laws of the state, in accordance with Knox v. Jones, 47 N. Y., 389 ; and it has been so framed as to avoid a conflict with various provisions of chap. 18, post, particularly those contained in tit. 3, art. 1, § 2625, post, whereby Laws 1870, chap. 359, § 11, which authorizes the surrogate of New York to determine questions of validity, etc., has been extended to surrogates throughout the statu”

It will be noticed that the commissioner says that this section (1866) has been expressly confined to real property, and has been ■so framed as to avoid a conflict with the various provisions of chap. 18 (particularly § 2625), whereby the provisions of said act of 1870, to construe wills, etc., was extended to the surrogate’s ■courts throughout the state, which,§ 2625 reads as follows:

“ Where the surrogate decides against the sufficiency of proof or against the validity of a will, or upon the construction, validity or the legal effect of any provision thereof, he must make a decree accordingly; and, if required by either party, he must enter in the minutes the grounds of his decision.”

This section should be considered in connection with § 1866., supra, relating only to wills of real estate, and to which it is made to conform.

Section 2622 relates to the duty of the surrogate to inquire particularly as to all the facts and circumstances relating to the genuineness of the will and to the validity of its execution, the competency of the testator, whether under any restraint, etc., as elucidated in numerous decisions of the courts before the Code, relating only to the factum, of the will and not to its construc tion.

Section 2623 is important in this connection and reads : “If it appears to the surrogate that the will was duly executed ; and that the testator at the time of executing it was in all respects competent to make a will, and not under restraint; it must be admitted to probate, as a will valid to pass real property or personal property or both, as the surrogate determines, and the petition .and citation require, and must be recorded accordingly. The decree admitting it to probate must state whether it was or was not contested.”

Section 2624 requires the surrogate to determine the question of construction of a will of personal property when put in issue, in cases where the will was made within the state by a resident of the state, and the reason given by the commissioner is his note to this section for its insertion was for the special purpose to limit the jurisdiction of surrogate’s courts to construe wills of personal property to cases where the testator was a resident of the state at his death, and owning personal property within the state, citing Despard v. Churchill, 53 N. Y., 192.

Section 2627 provides that “ a decree admitting to probate a will of real property as prescribed in this article, establishes presumptively only all matters determined by the surrogate pursuant to this article as against a party who was duly cited, or a person claiming from, through or under him ; or upon the trial of an action or the hearing of a special proceeding, in which a controversy arises concerning the will.”

Section 2629 requires the surrogate to certify under his hand and seal of office upon every will admitted to probate before him, that it has upon due proof been admitted to probate as a will valid to pass real or personal property, or both, as the case may be, and § 2633 requires the executor to have a will of real property recorded in the office of the county clerk in every county of the state in which lands of the testator are situate, in twenty-days after letters testamentary are issued to him.

It may be claimed that the statutes nowhere give such courts, in terms, direct authority to construe wills of real estate on probate. Such authority is claimed to be granted under their general authority in probating wills, in connection with the authority contained in the above sections of the Code. Neither do the statutes give to such courts, in terms, jurisdiction to construe wills of real estate on the settlement of estates, but it has been long held that such authority exists as clearly implied under their general authority to settle estates and as incident thereto. Riggs v. Cragg, 89 N. Y., 479; Purdy v. Hoyt, 92 id., 446; Du Bois v. Brown, 1 Dem., 317; In re Verplanck, 91 N. Y., 439; Matter of Collyer, 4 Dem., 24; Matter of Thompson, 5 id., 117, 123; §§ 2473, 2481, sub. 11, 2482 of Code.

While 1 find dicta in several cases decided by the surrogates of the county of New York, stating that the surrogate court has not jurisdiction to construe wills of real estate on probate, yet an examination of these cases discloses the fact that the question here-involved was not material in them, such cases having been decided upon other points.

In the case of Prive v. Foucher, 3 Dem., 339, decided by the learned surrogate, Rollins, in 1885, the surrogate assumed that the will in question related to personal property, saying that the surrogate had no jurisdiction to make a determination respecting a testamentary disposition of real property. The decision in that case turned upon an entirely different question, being that the contingency upon which the legatee under certain statutes could take had not arisen, and that, therefore, the methods by which the interest of such legatee could be practically ascertained need not he considered; and the case does not show that the question here concerned was raised, considered or examined by the learned surrogate.

In Jones v. Hamersley, 4 Dem., 427, decided by Rollins, surrogate, in 1886, the will related to both real and personal property, and the surrogate was asked only to construe that part of the will relating to personal property, under § 2624 of the Code. The surrogate held that the parties asking for construction had no standing in court; that the application was not one which would be then ascertained and passed upon by the supreme court, and adds that the provision of the Code then under discussion was enacted in the place of an earlier provision. Laws 1870, chap. 359, § 11, referring to § 2624.

In Matter of Rhoda Fuller, 22 N. Y. State Rep., 352, decided in 1889 by Abbott, surrogate, Kings county, it appears that the counsel for the contestant, Luther M. Fuller, asked only for the construction of the will in respect to a personal legacy to Ella S. C. of the testatrix’ “ bank book in the South Brooklyn Savings Bank, with the contents, on her twenty-first birth-day,” on the ground that the bequest was contingent, and did not vest until the contingency should happen; and, if it should never happen, the legacy would lapse. In the same case the bequest to Lydia E. BrinkerhoS, of personal property in two items of $2,500 and $2,000, was discussed by Judge Abbott, and was not passed upon only as postponing the same until the termination of a cer-' tain life interest. The points presented by the counsel for the proponent did not raise the question as to the testamentary disposition of real estate, yet the learned surrogate incidentally referred to the fourth paragraph of the answer as relating to real property by saying: “The fourth paragraph of the answer refers to a disposition of real property which the surrogate has no jurisdiction to construe under § 2624 of the Code,” a proposition too patent to be denied.

In Matter of Anthony Ellis, 22 N. Y. State Rep., 77, the only question raised or discussed related to the proposition to ask for a construction of the will on petition for revocation under § 2647 of the Code; the learned surrogate (Ransom) holding that such question could only be raised on probate, and not on petition, for revocation of probate.

The case of Matter of Roselia S. Look, 22 N. Y. State Rep., 86, appears to be like this in all essential particulars, and the parties interested asked the surrogate'to give construction to the will which related to both real and personal property. The testatrix died in 1888 seized of the title in fee to land in Chautauqua county valued at $400, and personal property appraised at $5,000, and leaving her surviving twenty-five heirs at law who contested the will. After bequeathing $500 in two legacies, by the third paragraph of her will, she gave and devised all the residue of her property real and personal to the American Bible Society formed in New York in the year 1816, to be used by said society for the promulgation of the Holy Bible. The contestants, heirs at law of the decedent, asked the surrogate to give construction to such residuary clause and adjudge the same void. It clearly appeared that such devise included said real estate as the testatrix owed no debts of any amount, and the surrogate made his decree holding the devise valid. If he had held it void the title to the land would have vested in the contestants. The surrogate’s decree was confirmed by the general term, fifth department, 26 N. Y. State Rep., 745, and has since been affirmed by the court of appeals.

I direct decree, holding that the surrogate court has jurisdiction to give judicial construction to the will in question on probate, and adjudging same void, and denying probate thereof, without' costs to either party.  