
    Albert I. Adams, App’lt, v. Lucretia Becker et al., Impl’d, Resp’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 30, 1889.)
    
    1. Wills—Action fob constbuction of.
    There must be some color of a question of construction before a court can be called upon to construe a will.
    2. Same—Coststbuctioh of.
    The will in question gave the use of one-half of testator’s property to his widow for life and the balance to plaintiff, his son, at his majority, and in case the son died without issue the entire estate was given to testator’s brothers and sister; in case such death occurred before that of the wife she was to have the use of three-fourths for life and the brothers and sister the remainder. The use of a house and barn was given to testator’s father for life. Held, that plaintiff was vested with a fee subject to his mother’s rights and subject to be divested by his death after attaining the age of twenty-one without issue, and that the brothers and sister of testator took a contingent remainder.
    Appeal from a judgment entered in Livingston county upon a report of a referee in an action for the construction of the last ■will and testament of Albert Adams, deceased.
    
      A. J. Abbott, for app’lt; S. Hubbard, for resp’ts.
   Macomber, J.

The will, for the construction of the provisions of which this action is brought, is in its material parts as follows : “After the payment of all my honest debts and funeral expenses, I give and bequeath to my wife, Cynthia W. Adams, the use of one-half of both my real and personal property, together with the entire household furniture, etc., during her life-time. I give the balance of my estate, both personal and real, to my son, Albert I. Adams, at his majority, and in case my son dies without issue, then I give my entire estate to my brothers, Asael B. Adams, Isaac Adams and Willis Adams, 2nd, and my sister Lucretia Becker, to share and share alike. I also give to my father, Willis Adams, during his life-time, the use of the house, bam and garden where he is now living.

“ I also appoint my friend Charles A. Coykendall, guardian for my son Albert, during his minority.

“ In case my son Albert dies before my wife Cynthia, then I give and bequeath the use of three-fourths of my entire estate to-my wife during her life-time, and the use of the remainder to-my brothers and sister aforesaid.”

Upon the first trial of this action, the learned referee dismissed tne complaint for the reason that (as stated in his report), inasmuch as there was no trust created by the will there was nothing alleged in the complaint which entitled the plaintiff to call upon the-court for the exercise of its equity powers.

Upon an appeal from that decision to this court it was held, 47 Hun, 65, that such decision of the referee was erroneous, and a new trial was granted. Though the opinion embracing such decision of the general term contains many expressions which would warrant a resort to the court for the construction of this will, yet the only thing there evidently meant to be decided was, that under § 1866 of the Code of Civil Procedure jurisdiction is conferred upon the supreme court upon the application of the heir at law to interpret a will and to judge when any of the several devises were void, and, also, to determine the nature and character of the interests of the several devisees in the real estate of which the testator died seized, in accordance with Drake v. Drake, 41 Hun, 366; 2 N. Y. State Rep., 578, and citing Wead v. Cantwell, 36 Hun, 528 ; Wager v. Wager, 23 id., 439; De Bussierre v. Holladay, 55 How. Pr., 220. The court there held that it was not necessary that there should have been created by the will a trust in order to enable parties beneficially interested in such will to bring an action for its construction.

Upon the first trial the referee did not place his decision upon the ground that the terms of the will were so plain as not to require construction. He seems to have determined the case solely upon the ground that it was necessary to enable a party to come into this court for a construction of the will that there be a trust involved which would give the court jurisdiction in equity and which would relieve him of the general rule existing at common law; that in the absence of a trust the party in possession must wait an attack upon his rights, and if out of possession must bring his action at law to establish his claim.

This court had not, at the time of the former decision, the benefit of the views of the court of appeals, as expressed in the case of Horton v. Cantwell, 108 N. Y., 255; 13 N. Y. State Rep., 615, although the case was cited in the opinion above mentioned in 36 Hun, 528, sub nom. Wead v. Cantwell.

The court of appeals distinctly held in Horton v. Cantwell, supra, that it is not alone a case where a claim is made as to the character of a devise, that the court can, under § 1866 of the Code of Civ. Pro., take jurisdiction; there must be some color of a question of construction before it can be called upon to construe it; and that the courts will not sit merely to determine abstract questions. See also Anderson v. Anderson, 20 N. Y. State Rep., 344. Let us first settle whether construction is at all admissible. Lieber’s Leg. & Polit. Hermeneutics, chap. 3, § 4.

With this governing and sensible rule before us there does not appear to be in the several provisions of this will any ambiguity, contrariety or inconsistency which would lead the parties to resort to the court for instructions. One of the canons of construction-is, that construction should never be resorted to unless the same is necessary.

There is nothing in the will that deprives Cynthia W. Adams -of her dower rights. Konvalinka v. Schlegel, 104 N. Y., 125 ; 5 N. Y., State Rep., 562. Without any construction it is clear that the widow of the deceased was entitled, in any event, to the use and income and profits of one-half of all of the personal property and of the household furniture, and to the use, income and profits of one-half of all of the farm and real property, except the house and lot and barn reserved for the use of the testator’s father. The plaintiff, Albert I. Adams, the son of the testator, had a vested remainder in fee limited upon the death of Cynthia W. Adams, his mother, in. and to all that part of the property and real estate in and to which his mother has a life estate of the use, income and profits thereof. That subject to the like contingencies and conditions the plaintiff is also entitled to an estate in fee simple to all other of the real property mentioned in the complaint.

The whole of plaintiff’s rights is subject to be entirely defeated by the contingencies or limitation or condition subsequently appearing in the will, namely, that in case he (the plaintiff) die without issue, then, and in that case, and from the time of his said death,' a substituted remainder in all of said real estate and said property to which the plaintiff is or may be entitled, as aforesaid, is given and devised to and vests in other persons named in the will of the.deceased. Avery v. Everett, 110 N. Y., 317; 18 N. Y. State Rep., 213; Vanderzee v. Slingerland, 103 N. Y., 47 ; 2 N. State Rep., 732; In re N. Y., L. & W. R. Co., 105 N. Y., 89; 6 N. Y. State Rep., 851; Beck v. Ennis, 26 id., 749.

A reference to these citations, and to the plain reading of the will, will show that testator, in these several provisions for the benefit of his family and relatives, did not make provision in case of the death of his son during the testator’s lifetime only, but' at any time after attaining the age of twenty-one years, provided he died without issue. The plaintiff, at the time of making the 'will, was only six years of age. The testator evidently contemplated that his wife and child would equally share his bounty during their joint lives, and that his brothers and sister should take the whole estate after the death of the son, without issue, and after the death of the widow; being more concerned for the welfare of his son than he was of his brothers and sister, he provided that in the contingency that the mother should outlive lier unmarried son, the mother should have not only one-half but three-fourths, and the brothers and sister should take the residue. The plaintiff clearly took a conditional fee, defeasible by his dying without leaving issue living at the time of his death,' and the brother and sister of the testator took a contingent remainder. Vanderzee v. Slingerland, 103 N. Y., 47; 2 N. Y. State Rep., 732; In re N. Y., L. & W. R. Co., 105 N. Y., 89 ; 6 N. Y. State Rep., 851; Avery v. Everett, 110 N. Y. 317; 18 N. Y. State Rep., 213.

While it is true that a devisee or heir-at-law may, under § 1866 of the Code, come into court and ask for the construction of a last will, yet it is not every will and every interest which will enable a party thus to call upon the court for advice and assistance. It was distinctly held in Horton v. Cantwell, supra, that any person "claiming the invalidity of the provisions of a will disposing of real property must make it appear that there was a disposition of some interest made by the will which might possibly be enjoyed in actual possession during the lifetime of the plaintiff, if the provision of the will be declared to be invalid.

The court says (page 265): “ But it is not alone a case where a claim is made in regard to the character of a devise that the court under this section of the Code can take jurisdiction. There must be some color of a question for construction before the court can be called upon to construe the devise. * * * We do not think that one who stands in such a relation to property can maintain an action for the construction of a devise in regard to it under § 1866 of the Code. The testamentary disposition of real property, or of an interest therein, the validity, construction or effect of which may be determined under the above quoted section, and where its invalidity is sought to be determined, must be ■a disposition of some interest in real estate, which may possibly be enjoyed in actual possession (if the invalidity of such disposition be decreed) during the life-time of the person who seeks the aid of the court in construing the devise of such real estate or interest therein. In this case, the contingency upon which alone the question can arise may never occur.”

Whatever imaginary questions have attempted to be thrust into this case by the ingenious argument of counsel, there does not appear to have been any pretense on the part of any person, directly or indirectly benefited by this will, to deny the plaintiff’s right, in connection with his mother, to enjoy the entire income of all of the property of the decedent during their joint lives (save only the house and lot and barn reserved to the decedent’s father), except through the contention already adverted to respecting the death of the plaintiff during the life-time of his father before the will took effect. Ho possible questions can be brought into the case, which might lead to a dispute of the right of the plaintiff. and his mother to the present enjoyment of the property. The case, therefore, which is presented to us, is, purely speculative, and not real.

The judgment entered upon the report of the referee does not disturb the status quo, and does not require any affirmative-action by any person. It does not deny to any person any possession or rights which is judged to be unlawfully maintained, and it does not give to any other person the enjoyment of the same under a holding that such person has been hitherto unlawfully deprived thereof. The case, therefore, comes down to this proposition: that the plaintiff, although he has now attained the age of twenty-one years, when the devise to him was to take effect, may die without issue, in which event the brothers and sister of the testator would take the estate after the death of the widow.

But the plaintiff himself is not interested in a judgment of the court to that effect, nor do any of the defendants desire it. He seems, on the whole, to have resorted to this action for the purpose of getting an adjudication upon the wholly untenable proposition that, inasmuch as he did not die during the lifetime of the testator, that the brothers and sister of the testator cannot in any event take any interest in this estate. This contention does not, in my judgment, come up to the level of the rule which requires that there must be some color of a question of construction before the court can be called upon to construe a will.

This evidently was the opinion of the learned referee upon the last trial, although feeling himself bound by what he deemed to have been embraced in a former decision of this case, he has proceeded to construe the will, which construction is nothing more than a reading of the will. It matters very little whether in this particular case we affirm the judgment entered upon his report or reverse entirely upon the ground that no proper case has been made out for the interposition of the court, except that an affirmance of a judgment, so reluctantly pronounced by- the referee, would make a bad precedent and would invite litigous parties into court upon the most flimsy pretext of a necessity for the construction of a last will relating to real estate.

On the whole we think the judgment should -be affirmed, with costs.

Babkeb, P. J., and Dwight, J., concur.  