
    Robert B. Roosevelt, App’lt, v. James A. Roosevelt et al., Executors, Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 29, 1889.)
    
    Wills—Construction of—When court not authorized to act—Complaint—Demurrer.
    Where in an action brought for the construction of a will, the complaint did not allege any facts showing that any of the provisions of the will were invalid, or that the testator died intestate as to any of his estate or that there was any controversy or difference between the parties or any of them, in respect to the construction of the will or any of its provisions, or that the plaintiff is deprived of his rights, or that he is a person claiming an interest in the estate, either as legatee under the will or as entitled to it under the statute of distributions, or from any other reason, Meld, that no facts are alleged which authorized the court to take any action.
    
      Appeal from judgment dismissing complaint entered on order sustaining demurrer.
    
      Mr. Gleason, for app’lt; C. Jones, for resp’ts.
   Van Brunt, P. J.

—The complaint in this action, alleges the death of one Cornelius V. S. Eoosevelt, leaving him surviving, his widow and certain next of kin, of which the plaintiff, his brother, was one. The complaint further alleges that said Eoosevelt, 'left him surviving, no child or children, nor descendents of any deceased child or children, or father or mother, and no brothers or sisters, or descendants thereof, except as stated; that the deceased was a resident of the state of New Jersey, at or prior to his death, but that he left personal property in the county of New York, and a last will and testament, setting out said will "by which it would appear that the deceased had disposed of all his property The plaintiff is not mentioned as a-beneficiary under said will. The complaint then alleges the probate of the will in New York county, and that the executrix named therein renounced her right to letter testamentary, and the issuance of letters testamentary to the defendant trustees.

- The complaint then alleges that said deceased left personal property which is in the custody and possession of said executors, amounting to over $250,000, but that the actual amount or value thereof is unknown to the plaintiff, and that the deceased died seized of certain real property (naming it), which property is also in the- possession of said executors and trustees; that two of the beneficiaries named in the will had died prior to said Eoosevelt, deceased, and then alleges that the plaintiff and defendants in this action are next of kin and heirs at law of said deceased, the beneficiaries named in said will, and the executors and trustees of and under said will. The complaint then alleges that said executors and trustees claim to and do hold and retain the moneys and property attempted to be bequeathed and given to the said two deceased beneficiaries for the other persons named as beneficiaries in said will.

The plaintiff then prays judgment that “the share and interest of the plaintiff in the personal property of the said Cornelius V. S. Eoosevelt, deceased, may be ascertained and adjudged,- and that the said executors and trustees of the said will may be adjudged to pay and deliver same to him at the period of distribution provided in the said will, • and that the said will of Cornelius V. S. Eoosevelt may be construed and determined by this court, and that the validity or invalidity of the several provisions thereof may be ascertained and adjudged herein; and' that the shares, rights and interests of the,respective parties to this action in and to the property of the said Cornelius V. S. Roosevelt may be ascertained and determined by this court.”

There are no facts alleged in this complaint authorizing the court to take any action whatever. It does not allege that any of the provisions of the w.ill are invalid, or that the testator died intestate as to any of his estate, or that there is any controversy or difference between the parties, or any of them, in respect to the construction of the will or any of its provisions, or that the plaintiff is deprived of his rights by any acts of the defendants, or either of them, or that any question is made, or that there is any doubt as to the construction of the will, or that the plaintiff is or will be entitled to any part of the estate of the deceased, or that he has made any claim thereto, or that any claim of his is disputed by the defendants, or either of them.

It seems, however, to be claimed upon the part of the plaintiff, that without showing upon the face of his pleading that he has the slightest interest in the construction of the will, or that he would, under any circumstances, be entitled to any property of which the deceased testator died seized or possessed, he has a right to invoke the jurisdiction of this court for the purpose of construing a will in regard to which no question is made, or to determine some point or question which it does not appear has ever been in any manner raised; our attention is called to the case of Wager v. Wager (89 N. Y., 161), as an authority for the maintenance of this bill.

A mere citation from this case, however, shows very distinctly the basis upon which the equitable jurisdiction of this court may be invoked in reference to the construction of a will. It is said “the jurisdiction of equity over trusts gives it authority to construe wills whenever necessary to guide the action of a trustee.” There is no allegation in this pleading that it is at all necessary that the action of the trustee should be guided by any interposition of the court.

The court further say: “An executor is always a trustee of the personal property of the testator, and can be called upon to account therefor as such in a court of equity, even though no express trust be created by the will. Any person claiming an interest in the personal estate of the testator, either as legatee under the will or as entitled to it under the statute of distributions, may file a bill against the executors to settle the construction and ascertain the validity of the provisions of the will so far as the complainant’s interest is concerned, and to enable him to obtain from the executors such portions of the estate as he is •either legally or equitably entitled to.”

The court here characterized what must be the condition of the plaintiff before he can" call upon the court to act; namely, he must be a person claiming an interest in the estate either as legatee under the will or as entitled to ifc under the statute of distributions.

There is no such claim or allegation contained in the complaint now under consideration. There is not a scintilla of evidence to show upon what theory the plaintiff claims, or that he has a particle of interest under any of" the circumstances alleged in any portion of the estate embraced within the terms of the will. It is true that the death of two of the beneficiaries named in the will is-alleged, but it nowhere appears in this complaint that the plaintiff because of this fact has become entitled to, or may become entitled to, this estate. It may be that he may have some claim, but it certainly does not appear upon the-face of his pleading.

We think this is fatal to the maintenance of the action, as otherwise the court would be called upon to determine abstract questions in which the plaintiff who brought the action does not appear to have a particle of interest.

The judgment must be affirmed, with costs.

Brady and Daniels, JJ., concur.  