
    (88 Hun, 374.)
    In re CAMPBELL’S WILL.
    (Supreme Court, General Term, Fourth Department.
    July 5, 1895.)
    1. Wills—Construction—Jurisdiction of Surrogate.
    Under Code Civ. Proc. § 2624, providing that if a party to a probate proceeding expressly puts in issue, before the surrogate, the validity, construction, or effect of any disposition of personal property contained in the will, the surrogate must determine the question on rendering a decree, it is error for the surrogate to pass on the validity of a provision of the will on the motion of a person who had no interest under the will, and who, even if such provision were declared invalid, would take no interest in the property bequeathed thereby.
    
      2. Same—Consent to Jurisdiction.
    Jurisdiction to construe a provision in a will cannot be conferred on fhe surrogate by the consent of parties, where it is not conferred by statute.
    8. Appeal—Settlement op Case.
    Attaching records together, and calling the bundle a “case,” does not make it one.
    Appeal from surrogate’s court, Schuyler county.
    Proceeding for the probate of the will of Jane G-. Campbell, deceased. From a decree made on the probate of the will, which adjudges “that the provision in said will giving to Henrietta L. Butler the sum of fifteen thousand dollars in trust, and the subsequent direction for the disposition thereof, is legal and valid,” said Henrietta L. Butler appeals.
    Reversed.
    Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.
    M. J. Sunderlin, for appellant.
    A. P. Rose, for respondents.
   MERWIN, J.

On the 19th January, 1891, Jane G-. Campbell died, leaving as her sole heirs and next of kin Henrietta L. Butler and Elizabeth C.' Foster, and leaving a last will and testament bearing date June 27, 1889. In and by this will provision was made for the payment of debts and a number of legacies, and then came the following items: “Item: I give and bequeath to my niece, Henrietta L. Butler, the sum of fifteen thousand dollars in trust nevertheless, said sum to be invested by her as she may think best, and the proceeds thereof to be used for the support of a clergyman who shall hold divine services in the Lawrence Memorial Chapel, at Cayuta lake, as often as may be convenient, and for such otjier purposes in keeping up the church services as she may think advisable; and at the death of the said Henrietta L. Butler the said sum of fifteen thousand dollars shall be paid to the trustees of the parochial fund of the Protestant Episcopal Church in the diocese of Western New York, to be held by them, and the income therefrom used for paying a clergyman who shall hold divine services in the Lawrence Memorial Chapel, at Cayuta lake, as often as convenient, and to keep up and in good repair the said Lawrence Chapel and cemetery at Cayuta lake. Item: All the rest and residue of my property, both real and personal, of every description, I give, devise, and bequeath to my niece, Henrietta L. Butler, and constitute her my residuary legatee; and should any legacy or devise herein lapse, or be held by any competent court to be invalid, then the part of my estate included therein shall go to my said niece, Henrietta L. Butler, the residuary legatee and devisee of all my property.” On the 23d January, 1891, George H. Butler and Henrietta L. Butler, the executors named in the will, filed with the surrogate of Schuyler county their petition in the ordinary form for the proof of the will. A citation was issued returnable February 24, 1891, which was served on Mrs. Foster February 15th. On the return day the executors and petitioners appeared in person, and Mrs. Foster in person and by counsel, and asked for time to answer. This was apparently granted, and the matter adjourned to March 12, 1891. On the 5th March, 1891, Mrs. Foster by her attorney filed an unveritied answer, in which she stated that she appeared and contested the1 probate of the will, on four grounds: First, that the decedent was not a resident of Schuyler county, and the surrogate’s court of that county had no jurisdiction; second, that the will was not properly’ executed; third, “she alleges and charges that the clause or pro-' vision in said will giving to Henrietta L. Butler the sum of fifteen5 thousand dollars in trust, and the subsequent direction for the dispo--' sition thereof, are illegal and void;” fourth, that the will was pro-; cured by undue influence, and was void. Upon the adjourned day the petitioners appeared, and Mrs. Foster appeared by counsel, and' the formal depositions of the subscribing witnesses were taken. There’ appears to have been no contest over the probate. Upon the same’ day, the decree admitting the will to probate was entered. In this, after that part by which the will is admitted to probate, there is a clause, purporting to be made on motion of the counsel for Mrs.-1 Foster, by which “it is further adjudged that the provisions in said will giving to Henrietta L. Butler the sum of fifteen thousand dollars in trust, and the subsequent direction for the disposition thereof, is' legal and valid.” .

It is claimed by the appellant that the surrogate had no right to • make any adjudication affecting her rights as residuary legatee; that there was no issue under the provisions of section 2624 of the Code that authorized the surrogate to construe the will. That sec-1 tion is as follows:

“Sec. 2624. But if a party expressly puts in issue, before the surrogate, the. validity, construction, or effect of any disposition of personal property, con-' tained in the will of a resident of the state, executed within the state, the¡ surrogate must determine the question, upon rendering a decree; unless the-decree refuses to admit the will to probate, by reason of a failure to prove any of the matters specified in the last section.”

Mrs. Foster, upon whose motion the adjudication in question was-made, had no interest under the will. If the trust for any reason was invalid, she was not affected, for it is expressly provided that if any legacy is invalid, it shall go to the residuary "legatee. Nor did Mrs. Foster have any interest, so far as it appears, in sustaining the trust.! A case is therefore presented where the court, upon motion of a party having no interest in the matter, assumes to construe and,adjudicate upon the terms of the will. We are of the opinion that section 2624, above cited, confers no authority for this, and that no issue within the meaning of that section was before the surrogate. Jones v. Hamersley, 4 Dem. Sur. 427.

But it is said that the appellant consented that the surrogate might construe the will. Consent would not confer jurisdiction. In re Walker, 136 N. Y. 20, 29, 32 N. E. 633. There was certainly in the present case no express consent, and it should not, I think, be inferred. The allegation of Mrs. Foster as to the trust was put forward as one of the grounds for contesting the probate, and when the contest was in substance abandoned, and the will admitted to probate, it might well have been inferred by the residuary legatee that all action or attempted action on the part of Mrs. Foster would be ended, and that the surrogate would not be called on in her behalf to • make any order about it. The proceeding was not treated as a trial of a question of fact under section 2545 of the Code. No decision was filed containing a separate statement of the facts found and the conclusions of law. If the case was not a trial under section 2545, it would not seem to be necessary for the appellant to file exceptions to the provisions of the decree in order to take advantage of its invalidity. If the subject of the construction of the will was not properly before the surrogate, that defect was not waived by the appellant by presenting requests on the settlement of a so-called case after the appeal was taken. It is not clear that there was any authority for presenting requests, or for making a case, or that any was in fact made. Attaching records together, and calling the bundle a case, does not make it one.

Upon the points on either side the question as to the validity of the trust is discussed, but on each side one or more facts are assumed to exist that are quite material to the views of either counsel, and that do not appear in the record before us. We have no right to go outside of the record for the facts, and it is quite apparent that the question in controversy cannot be properly determined as the record here stands.

The decree so far as appealed from should, we think, be reversed, on. the ground that the question as to the validity of the trust was not properly before the surrogate, and he had no authority to act upon it. .

Decree of surrogate’s court so far as appealed from reversed, on the ground that the question as to the validity of the trust was not properly before the surrogate. Costs of appeal to the appellant, payable from the estate. All concur.  