
    Max Kalish, Appellant, v. Julius Kalish and Others, Respondents.
    
      Action by an heir at law or next of kin not interested in a trust, to have-it declared void í— it is not maintainable.
    
    An heir at law, not interested in any trust created by a will and standing in a ' position of hostility to the will, cannot maintain an action to have .a trust therein created (which is subject to an existing life’ estate) declared to be void; nor is he entitled to maintain the action as next of kin on the theory that real estate . and personal property are mingled-in the trust.
    Such an action cannot be maintained under section 1866. of tlie-Code of Oiv.il Procedure the remedy being adequate at law.
    Appeal by the plaintiff, Max Kalish, from a judgment of the Supreme Court in favor of the defendants, entered in. the office of the clerk of the county of Hew York on .the 4th day of April, 1899, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint, and also from an order entered in said clerk’s office on the 28tli day of March, 1899, denying the plaintiff’s motion to set aside as erroneous the decision of the court at Special Term dismissing the action.
    
      George H. Starr, for the appellant.
    
      Edward W. S. Johnston, for the respondents.
   Patterson, J.:

Julius Kalish died in October, 1897, leaving a last will and testament which was duly admitted to probate by the surrogate of New York county. He left him surviving his widow and nine children, •one of whom is the plaintiff. By his will he gave all his property, real and personal, to his wife during her natural life, and then directed.that until the final disposition of his estate his executors should pay to each of two of his daughters a certain sum annually, and to another of his daughters a certain other sum annually. He then, made provision for a sale of real estate by his executors during the lifetime of his widow, or during a period of time intermediate her death and the final disposition of the estate. In case of a sale ■of his real estate, lie directed that, the proceeds should be reinvested in other real estate, but that none should be sold during the lifetime of his widow without her consent. He then required that, upon the death of his widow, his executors should hold the property in trust until the final distribution of the estate, giving to them a power to collect the rents, issues and profits until distribution^ and after the payment of the annual sums to his daughters, as before provided for, and taxes and charges upon the property, to invest the surplus iii real estate. By the 8th clause of the will he directed that his estate should not be distributed or settled until five years should have elapsed after the decease of his wife, such settlement and final distribution to be made as soon after the expiration of five years from her death as, in the opinion of his executors, would be for the best interest of his estate and those who were to be sharers therein; and in aid of the final settlement he again gave a power of sale to the executors. On the final distribution of the estate, the testator gives to his son Max, the plaintiff, the sum of $100 in cash, and assigns a reason for not making that bequest larger. He .then gives to certain of his. executors a sum of $8,000 in trust for the-benefit .of one of his daughters during her life, with gift over .upon ■her death, and .the. balance of the estate,-after Hhe payment of.,the» legacy to tlie plaintiff and the deduction of the amount of the, trust, for the daughter, he disposes of in various proportions among his-seven other children, and then'adds an in terrorem clause."-

Tlie action is brohght to ¡test the validity of 'the. pro visions'of'the-will relating to the disposition of the estáte qf the testator after, the-déathi.of his-v widow, and to have -it, judicially declared '-that; jail.its-provisions''¡concerning a" tr.tist in any :port-iop„of.'the real or;-personal properly to begin upon.the death, of-the.:widow, are void, and,that it be adjudged that they beset aside, 'and"that there is;intestacy .after thetexpiratioá of the widow’s life estate;; and that.-it ■ bd further-adjudged that the plaintiff, as an heir- at: law and one-of. the: next-pi' kin :of :the¡ testator,-¡-has become vested withv-a-- beneficial in-teresfin an. undivided ninthv.of the testator’s estate to vest in him in.-posssession after ;-the death ;of" the- testator’s '.-widow, -and'- that.- it:. be-- further-adjudged that:the executors have.n.oi capacity, either as executors or trustees,, to sell any. -of the real property of the tes.tatpr on the.death 'of'tids/'wrdbw, and 'for other,relief. ' On the, .trial. -of the ¡ea-usef the'coriiplaint'was;, dismissed., .oil the.-gromitftp&s it ¡'would apppar-b'y-tihe' record; -'that'the. plaintiff liad no/Standing tin court .to xmai'ntain- the» actio'not.:In that bondnsion’of the..trial, justice- we.-fully' coUeurl,

As lieir at: Haw;- not: interested in-.-ahy.. trust /created -by' the ¡will; and. suing in hostility 'to' the will, tlie- plaintiff,- is - in mó position now, on general .principles of .-.equity jurisdiction, to maintain-.an action - '-tqhave the trusts therein created for' the benefit of" others', declared void. (Bailey v. Briggs, 56 N. Y. 407; Chipman v. Montgomery, 63 id. 221; Anderson v. Anderson, 112 id. 110.) He admits the. validity of the will as to.the life estate. : -He claims, that by reason ¡of void trusts- the remainder has.mot been ;lawrfullyr-dig.posed of. That presents a purely, legal question to he.tried at: law.when- and -if' -the' occasion to do so arises. Hor is. he. entitled as .next of kin .to maintain the action upon, tlie theory .that real-and personal property are mingled- in the trusty -and that; therefore, lie is entitled? to liaye the will construed and the trusts declared invalid. Executorswhoare trustees of personal estate of a testator, and who hold the per-: sonalty, either under the will or as trustees of a resulting trust for the benefit of the next of kin,-if.the provisions of the will disposing of that personalty are invalid,-, are accountable in a court of equity to those entitled to that personalty; and any one claiming an interest in the personalty, either as legatee under the will or-as entitled to it under the Statute of Distributions, may, when the executor claims the interest in his own right, bring suit to settle the construction an'd ascertain the validity of the provisions of the will, so far as the plaintiff’s interest is concerned, and to enable him to obtain from the executor such portion as he is either legally or equitably entitled to. (Wager v. Wager, 89 N. Y. 161.) But. support for this action cannot be claimed upon that theory, if for no other reason than that here the plaintiff:- is not-seeking to obtain, and, upon his own showing, cannot obtain, at present either a distributive share of the estate as next of kin or as legatee. In Horton v. Cantwell (108 N. Y. 267), referring-to Wager v. Wager, the court said that as to personal property an executor is always a- trustee, and any one claiming an interest in such personalty, either as legatee under the will, or as entitled to.it under the Statute of Distributions, may, when the executor claims such interest in his own right, bring suit to.settle the construction and ascertain the.validity of the provisions of the will so far as plaintiff’s interest is concerned and to enable■ him to obtain from the executors such portions of the estate as they were entitled to. In Read v. Williams (125 N. Y. 566) the right of the next of kin to maintain A suit in equity for the construction of a will disposing of personal estate is very broadly stated, but it is not suggested that either the next of kin or legatee, not having a present interest in the property and who may never have any, has authority to maintain the suit. This plaintiff has no present interest as next of kin or as legatee requiring the construction of the will. The remarks of Learned, P. J., in Marlett v. Marlett (14 Hun, 315) are appropriate, viz., plaintiffs’ counsel cites a remark of the Chancellor in Bowers v. Smith (10 Paige, 199). to the effect that an executor takes the personal property as trustee, and that a person claiming an interest may file a bill to settle the construction of the will; but the Chancellor adds, ‘ and to enable him to obtain from the executors such portions of the estate as' he is either legally or equitably entitled to.’ How the difficulty with the present case is that the plaintiffs, at this present time,' are confessedly not entitled to anything in possession. All that they claim is that, at some future time, they or some persons succeeding to them, will be entitled to this personal property. * * * Advisory suits should seldom be permitted except when brought by trustees, or quasi trustees, for their own protection.”

But it is further urged by counsel for the appellant that the action may be maintained under section 1866 of the Code of Civil Procedure, which provides that the- validity, - construction- or effect under the laws of the State of a testamentary disposition of real property situated in the State, or of an. interest in such property which would descend to the heir at law of an intestate, may be determined in an 'action brought for that purpose in like manner as the validity of a deed purporting to convey land may be determined. It was held in the case of Whitney v. Whitney (63 Hun, 59) that, notwithstanding this provision of the Code, where a party claims a purely legal estate in land and seeks to have his title adjudicated upon or to recover possession against an adverse claimant, there being no feature of fraud, mistake or other fact calling for tire application of equitable doctrines, and the' granting Of a peculiar equitable relief — the remedy at law is adequate and the concurrent jurisdiction in equity does not exist. In the opinion of the- court by Martin, J., in that case, the history of. legislation which eventuated in the enactment of section 1866 of the Code as it now reads, is given and it is clearly .shown that by that section the right to maintain a suit in equity is not given where, the plaintiff can have his remedy at law in ejectment; and in the same case’ the authorities, are reviewed on the right to maintain the action as one in equity irrespective of this section of the Code.

The reasoning of the court in the case cited is so satisfactory and the review of the authorities so ample, that it is unnecessary to pursue the subject further. ' We, therefore, conclude that the plaintiff was- not entitled to maintain this suit.

The judgment must be affirmed, with, costs.

Van Brunt, P. J., Barrett, Rumsey and O’Brien, JJ., concurred.

Judgment affirmed," with costs/.  