
    Duclos et al. v. Benner et al.
      
    
    
      (Supreme Court, General Term, First Department.
    
    July 9, 1889.)
    Wills—Actions to Construe—Jurisdiction.
    By a judgment construing a will it was provided that any of the parties to the action might thereafter apply to the court for further or other relief, as circumstances might require. A subsequent petition in the action alleged that certain of the beneficiaries under the will had died without issue, and that a further construction of the will was necessary. Some of the defendants appeared and answered, admitting the facts alleged, but there was no proof of service upon or appearance by the testator’s executor. The court, without taking any proof as to the fact of death without issue, proceeded to construe the will. FLeld, that it was without jurisdiction, both because the executor, as such, was a necessary party, and because, notwithstanding the admission as to the death, proof of that fact was essential.
    Appeal from special term, Hew York county.
    
      This was a petition by Frances H. Duelos and Charles H. Benner against Mary S. Benner and others, for the further construction of the will of Hiram Benner, deceased. Both parties appeal from the order made upon the hearing of the petition. For the opinion of O’Brien, J., on that hearing, see 5 FT. Y. Supp. 733.
    ■ Argued before Van Brunt, P. J., and Brady and Daniels, J.J.
    
      C. Bninbridge Smith, for plaintiffs. J. A. Shoudy, for defendants.
    
      
       Reversing 5 N. Y. Supp. 733.
    
   Van Brunt, P. J.

It is alleged by the petition of the plaintiffs herein that this action was commenced in FTovember, 1878, for a construction of the will of Hiram Benner, deceased, and that such proceedings were had that the will was construed, an 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 answers to the petition. There is no proof of service upon or appearance by one of the defendants, Frank M. Bonta, either individually or as-executor of the last will and testament of Hiram Benner, deceased. The notice of motion is not addressed to said Bonta as executor, and he is therefore only made a party to this proceeding as an individual. Landon v. Townshend, 112 N. Y. 93, 19 N. E. Rep. 424. His presence as executor was absolutely necessary. There is no proof even that Bonta, as an individual, has been served. It is true that the papers contain what purports to be an admission by Bonta 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 qf proof of the execution of papers is in no way recognized by statute. The court, without talcing 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 was not sufficient that the parties who appeared admitted them. The court was bound to take proof of the facts of the death of the cestui que trust, and that he died without issue at least, and this proof could not be supplied by any 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 ot 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 carryout its decree form the fittingsubjeet 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. All concui;.  