
    Bowers and wife vs. Smith and others.
    An executor takes the legal estate in the personal property of the testator as trustee for the legatees or next of kin ; and the court of chancery having general jurisdiction in cases of trusts, any person having an interest in such property, either as a legatee or distributee of the decedent, may file a bill in that court, against the executor, to have the construction of the will settled, or to have the question as to the validity of any of its provisions determined, so far as concerns the interest of the complainant in the property; and to have a decree against such executor for such parts or portions of the property as he is legally and equitably entitled to receive.
    Where the real estate of the testator is devised to a trustee upon distinct and independent trusts, some of which trusts are valid and others are invalid, there is a resulting trust in favor of the heir at law as to so much of the property as is not legally and effectually disposed of by the will; where the interest of such heir is not turned into a legal estate by the provisions of the revised statutes. And the cestui que trust, in such cases, may file a bill in chancery to have his rights in the estate of the testator settled and ascertained ; and to have the trusts of the wil learned into effect, so far as they are valid and effectual.
    So in cases of mixed trusts of both real and personal property, the court of chancery is frequently compelled to decide questions as to the validity and effect of contingent limitation in a will to persons who are not in esse, in order to make a final decree, and to give the proper instructions and directions'tol the executors and trustees in relation to the execution of their trust.
    But the heirs at law of the testator, or his devisees, who claim mere legal estates in his real property, are not authorized to file a bill in chancery for the sole purpose of obtaining a judicial construction of his will. The decision of legal questions arising upon the construction of a will, in such a case, belongs exclusively to the courts of law ; except where such questions arise incidentally in the court of chancery, and where that court has obtained jurisdiction of the case for some other purpose.
    A general bequest/tf the residue gives to the residuary legatee all the personal property of the testator which is not otherwise legally and effectually disposed of by the will.
    The husband is not the proper party to file a bill for the recovery of his wife’s separate estate. But whether the defendant in such a bill by answering it generally, without raising the objection in such answer that it is not properly filed in the name of the husband and his wife, and that it should have been filed by the next friend of the wife, does not waive such objection; Quaere ?
    
    Where the testator devises an interest in his real estate to his wife in lieu of dower, and she declines to accept such provision but elects to take her dower, it seems that the provision intended for her by the testator, in lieu of dower, is a contingent interest in real estate, which, in the event contemplated by the testator, goes to the devisee of the real estate, or to the residuary devisee.
    A residuary devise of real estate carries to the devisee not only the real estate of the testator which has not been devised to others, but also reversionary and contingent interests in the estate specifically devised, which, in the events contemplated by the testator, are not wholly and absolutely disposed of by his will. And the decision in James v. James, (4 Paige’s Rep. 115,) was not intended to impugn this principle, but was founded upon the peculiar language of the will in that case.
    An infant defendant does not lose his right to object to the jurisdiction of the court, at the hearing, upon the ground that the remedy is at law, although his guardian ad litem has omitted to raise such objection in his answer.
    Where there is an absolute devise of an estate for life to some of the heirs of the testator, and the devise of the remainder of the same property to others is invalid, the devisees of the life estate will not be compelled to elect between the life interest thus devised to them and their shares in the remainder which is cast upon them by operation of law as heirs of the testator.
    
      1843. April 4
    The bill in this cause was filed by the complainant, J. Bowers, in the names of himself and wfife, to obtain a construction of the will of his deceased father in law, Elias Smith. The testator died in 1839, seized and possessed of a large estate, real and personal, leaving his wife and four children surviving him. After providing in his will for the payment of his debts out of his personal estate, the testator, by the second clause of his will, devised to his ■wife Loranna Smith, and to his daughter Sarah Maria, the wife of J. Bowers, jointly, the use, benefit, and enjoyment of a farm, and of certain other real estate particularly described in the will, for and during their joint lives and the life of the longest liver of them. And in case his said daughter should have a child or children living at the time of her death, he gave and devised that part of his real estate to such child or children, on their arriving at the age of twenty-one, in fee, as tenants in common. But if she should die without leaving any child living at the time of her death, he devised the premises to his grandson, W. Lawrence, in fee, on his arriving at the age of twenty-one. And in case he died under twenty-one the testator devised the premises to his son, Joseph W. Smith, in fee.
    By the third clause of the will, the testator bequeathéd to his wife and his said daughter all his household furniture, and all his stock and farming utensils on the farm devised to them, with the grain and provisions on hand, and the grain in the ground, to them and to their heirs and assigns forever. And he declared that the devise and bequests to his wife were in lieu of dower; and that the devise and bequests to his said daughter were for her separate use and benefit, to be held, used, and enjoyed by her free from all debts and demands and from the control of her husband.
    By the fourth clause the testator devised to his daughter, Phebe T., the wife of L. W. Lawrence, during her natural life, another farm and certain other portions of his real estate, limiting the remainder in fee to her children who should be living at the time of her death. And by the fifth clause of his will he gave and bequeathed to his daughter, Mrs. Lawrence, absolutely, the stock and farming utensils on the farm so devised to her and her children.
    By the sixth clause of his will, the testator devised to his other daughter, Hannah Amelia the wife of J. C. Platt, during her natural life, a farm and other lands specified in the will. And after her decease he devised the same premises in fee to such of her children as should be living at the time of her death, and who should attain the age of twenty-one, as tenants in common. But if she should die without leavingany child or children who should arrive at the age of twenty-one years, then he gave and devised that portion of his estate to his son, J. W. Smith, in fee.
    And by the seventh clause the testator devised and bequeathed all the rest and residue of his real and personal estate to his said son and to his heirs and assigns forever. He also appointed his son and his son in law, L. W. Lawrence, the executors of his will. The son, however, died a few days after his father, and the will was proved by the surviving executor, to whom letters testamentary were granted.
    The complainants never had any children. Mrs. Lawrence and Mrs. Platt had each three children at the time of filing the complainants’ bill in October, 1839 ; the eldest of which children was fourteen years of age. It did not appear by the bill or the answers whether the son of the testator left any children ; nor was it stated in the pleadings whether he left a will or died intestate.
    The complainants’ bill, which was filed shortly after the death of the testator, after setting out the provisions of his will and the state of his family at the time of his death, the subsequent death of his son, and the granting of letters testamentary to the surviving executor, alleged that the widow had not yet elected whether she would claim her dower in the testator’s estate or accept of the provision made for her in lieu of dower. The bill also stated that various questions had arisen upon the will as to the nature and extent of the estate and interest which Mrs. Bowers took or derived under the will, and whether some of the devises and limitations therein contained were not void as tending to create perpetuities beyond the limits allowed by law. That among other questions which had thus arisen were the following, to wit: whether the real estate devised to Mrs. Bowers and her mother was devised to them as joint tenants or as tenants in -common ; and whether there was any distinction in that respect between the real and personal estate devised and bequeathed to them 1 whether, if the widow should elect to take her dower in the real estate instead of the provision made for her in the will, such election would destroy the joint tenancy in the real or personal estate, if the will created such a joint tenancy, or what else would be the legal effect thereof 1 And what would be the effect and operation upon the estate of Mrs. Bowers, under the second and third clauses of the will, should the widow elect to take the provision made for her in the will, in lieu of her dower, and proceed to make partition of the real estate so devised to her, which the widow threatened to do 1 Whether the devises over in remainder contained in the second clause of the will were not void on the ground that they might suspend the power of alienation for a longer period than during the continuance of two lives in being at the death of the testator 1 and if the first or the second of those limitations over was void, whether the subsequent limitation would also fail % Whether the limitation over to the children of Mrs. Bowers would, upon the birth of a child, become vested before the child arrived at the age of twenty-one; and if not, in whom the remainder in fee in the premises would vest in the meantime ? Whether the limitations over of the remainder in fee, in the real estate devised to Mrs. Platt, by the sixth clause of the will, were not invalid upon the grounds stated in reference to the limitations over in the second clause ? Whether, if any of the limitations in the will were void or invalid, the heirs at law of the testator to whom valid and effectual bequests and limitations were made, by the will, could participate as such heirs in the portions of the estate as to which the devises were invalid, without relinquishing the interests held by them under the will ? Whether, if the limitations over in the second and sixth clauses of the will were invalid, all the other devises and bequests in the will,.except the residuary devise and bequest to the testator’s son contained in the seventh clause, w'ere not also void 1 And whether, if the residuary devise and bequest to J. W. Smith the son was valid, the heirs at law or devisees of such son could, as heirs at law of his father, participate in any part of the estate not embraced in the residuary bequest contained in the said seventh clause %
    
    The complainants charged and insisted, in their bill, that as they were advised and believed the said will was uncertain or void as to various devises, bequests, and provisions therein contained ; which required to be expounded, ascertained, and settled by the decision of this court, in order that the complainants might ascertain and be assured of the rights of Mrs. Bowers under the will, or as one of the heirs at law of the testator. They therefore prayed, that the intent and meaning and legal effect and operation of the will might be judicially settled and expounded, and that such of its provisions as were contrary to law and void, might be so declared, adjudged and decreed.; that by the judgment and decree of the court the true intent and meaning and legal effect and operation of the will might be judicially expounded and finally ascertained and settled ; that such of its provisions as were contrary to law or otherwise invalid, might be declared and adjudged to be so, and that the effect and operation thereof upon the other parts of the will which were valid and effectual might also be declared, adjudged and decreed; and that the rights and interests of the complainant, Mrs. Bowers, .in the property and estate of her father, either under or by virtue of the will or otherwise, might be definitively ascertained ; or that the complainants might have such other or further relief in the premises as should be just and equitable.
    The widow of the testator, and his two daughters, Mrs. Lawrence and Mrs. Platt, together with their husbands, put in their joint and several answer, in which they admitted the allegations in the bill as to the making of the will, the death of the testator, the state of his family at the time of his death, the subsequent death of his son and the granting letters testamentary to L. W. Lawrence, the surviving executor, as stated in the bill. But they stated that the widow had elected to accept the provision made for her, by the will, in lieu of dower in the testator’s estate. And they insisted that the terms of the will were clear and explicit, and that the devises and bequests contained therein were not, nor was either of them contrary to law; that there was no necessity for submitting the will to the court for its advice and direction ; and that the complainants’ bill should therefore be dismissed with costs. The other defendants, who were the six infant children of Mrs. Lawrence, and of Mrs. Platt, put in a general answer by their guardian ad litem. And the cause was heard upon the bill and answers.
    
      M. S. Bidwell, for the complainants.
    
      George Wood, for the defendants.
   The Chancellor.

The bill in this case appears to have been filed upon the supposition that it is a part of the established jurisdiction of the court of chancery to settle all questions which arise as to the construction and validity of the provisions of a will of real estate, as W'ell as of personal property. This court has jurisdiction in cases of trust. And the executor always takes the legal title to the personal estate of the testator as a trustee. For so far as the provisions of the will are valid he holds the property in the character of trustee for the persons to whom it is bequeathed. And if there is any part of such property, or any interest therein, which is not legally and effectually disposed of by the will, he holds it as trustee for those who are entitled to it under the statute of distributions. Any person claiming an interest in the personal estate of the testator, therefore, either as a 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. So also, if the real estate of the testator is devised to a trustee upon distinct and independent trusts, some of which trusts are valid and others invalid, there is a resulting trust in favor of the heir at law as to so much of the property as is not legally and effectually disposed of by the will; where the interest of each is not turned into a legal estate by the provisions of the revised statutes. The cestui que trust in such cases, also, may file a bill in this court to have his rights as cestui que trust in the estate settled and ascertained ; and to have the trusts of the will carried into effect so far as they are valid and effectual. And where there is a mixed trust of real and personal estate .it frequently becomes necessary for the court to settle questions as to the validity and effect of contingent limitations, in a will, to persons who are not in esse; in order to make a final decree in the suit, and to give the proper instructions and directions to the executors and trustees in relation to the execution of their trust. (Lorillard v. Coster, 5 Paige’s Rep. 215. Hawley v. James, Idem, 442.) But I am not aware of any case in which an heir at law of a testator, or a devisee, who claims a mere legal estate in the real property, where there was no trust, has been allowed to come into a court of equity for the mere purpose of obtaining a judicial construction of the provisions of the will. On the contrary, the decision of such legal questions belongs exclusively to the courts of law, except where they arise incidentally in this court in the exercise of its legitimate powers; or where the court has obtained jurisdiction of the case for some other purpose.

No possible question can arise in this case, and between these parties, as to the validity of the bequests of the will as to any part of the personal estate of the testator. For the residuary bequest to the son gave to him all the personal property of the testator, and every estate and interest therein which had not been legally and effectually disposed of by the will. (Van Kleeck v. The Reformed Dutch Church, 6 Paige's Rep. 608.) It does not appear in this case who are the next of kin of J. W. Smith, or whether he left a widow or children, or made any testamentary disposition of his property at his death ; nor are his personal representatives before the court in this suit. There is in fact no question as to the rights of Mrs. Bowers in the personal property bequeathed to her and her mother by the third clause of the will. For it is bequeathed to them both, absolutely and unconditionally, except that Mrs. Bowers’ share is declared to be for her separate use, free from the control of her husband. One half of it therefore belongs to her, as her separate estate, and the other half belongs to her .mother. But if it was necessary for the court to settle any question as to that part of the testator’s personal property, this suit is not properly brought, to settle that question, in the name of the husband and wife jointly ; (See 2 Sim. & Stu. Rep. 464 ; 2 Keen's Rep. 73 ; 1 Beav. Rep. 96 ; and 8 Sim. Rep. 551;) though the defendants have probably waived the objection that the husband is not the proper party to file a bill for his wife’s separate estate, by answering the bill without objection. There is no allegation in this case, however, that the executor has refused to assent to the legacy in the third clause of the will; nor is it stated that Mrs. Bowers has not received her share of the personal property bequeathed to her and her mother.

The defendants in their answers in this case have made no objection to the jurisdiction of the court to declare the construction of the will. And if all those who are or may be affected by the decision of the questions arising upon the various provisions therein contained were before the court, so as to make the decree valid and effectual and binding upon their rights, it might be proper for me to proceed and settle the questions raised in the complainant’s bill. But upon examination it will be found that there is no question of importance stated in the bill in which other persons, who are not before the court, nor properly represented here, may not be interested in the decision. And there are very few questions raised in which the parties to the suit appear to have any interests adverse to each other. Tire.question whether Mrs. Bowers and the widow are joint tenants in the real estate devised to them by the second clause of the will, or tenants in common during their joint lives, with cross remainders in the share of each to the survivor for life, appears to be of no importance whatever. For in either case partition of that part of the testator’s estate may be made between them for their joint lives, under the provisions of the revised statutes. (2 R. S. 317, § 1.) And as the widow elected to take the provision, in lieu of her dower, within the time allowed to her by the statute for that purpose, it is unnecessary to decide what would have been the rights of the heirs, or other devisees of the testator, in the real estate devised to her, if she had elected to take her dower in all the real estate of her deceased husband. The personal property bequeathed to her in lieu of dower would unquestionably have gone to the residuary legatee of the testator, as personal estate not effectually disposed of by the will, in the event which would have occurred if she had elected to take her dower. And I am inclined to think that the interest devised to her in the real estate would also have gone to the residuary devisee, under the seventh clause of the will, as a contingent interest in real estate which, in an event contemplated by the testator, had not been disposed of by his will. (Van Kleeck v. The Reformed Dutch Church, 6 Paige’s Rep. 600.) The decision of this court in the case of James v. James, (4 Idem, 115,) was founded upon the peculiar language of the general trust clause in the will. It was not intended to impugn the general principle, that a residuary devise of real estate carries to the devisee, not only the real estate of the testator which has not been devised to others, but also reversionary and contingent interests in the estate specifically devised, which interests, in the events contemplated by the testator, were not otherwise wholly and absolutely disposed of by his will.

There is a question of doubt in this case whether the limitation over to the children of Mrs. Bowers, in case she shall have any who shall survive her, is not invalid ; if it can only take effect, in favor of such children, when they arrive at the age of twenty-one. For if she should have children who are under age at the termination of her life and the life of her -mother, such a limitation to the children, if valid, would suspend the power of alienation for more than any two lives in being at the death of the testator. But if this limitation to the children of Mrs. Bowers is to take effect, in their favor immediately upon the termination of the life estate of their mother and grandmother in the premises, and is only to be divested in favor of the residuary devisee, or his heirs, in the event of the death of the children respectively under the age of twenty-one, which perhaps was the intention of the testator, this limitation to the children, as well as the contingent limitation over to the residuary devisee under the seventh clause of the will, may be found to come within the exception mentioned in the 15 th section of the article of the revised statutes relative to the creation and division of estates. (1 R. S. 723.) The complainants however have no authority to represent the rights of their future issue; and I am not aware that any of the parties now before the court have succeeded to the rights of the residuary devisee. It would be therefore improper to express any opinion as to the validity of these contingent limitations, when all the parties now before the court appear to have a common interest in defeating them; and while it is yet doubtful whether the events contemplated by the testator will ever arise.

The same questions substantially arise in reference to the substituted limitation in favor of W. Lawrence, the grandson, in case Mrs. Bowers dies without children j as the language of the devise to him is the same. And the only difference in the two cases is, that there is a direct limitation over to the testator’s son, by the second clause of the will, in the event of the grandson’s dying under twenty-one, instead of leaving that limitation over to the operation of the general residuary clause. It is true the substituted remainder-man is before the court; but he is still an infant. A decree ought not therefore to be made at this time which might have the effect to compromit his rights upon a naked question of law, and where there is no necessity to adjudicate upon such rights. And being an infant he has not lost the right to insist that the court should not assume jurisdiction in this case, although his guardian ad litem has not raised that question by his answer. For the same reasons the court should not, at this time, attempt to settle the question as to the rights of the children of Mrs. Platt, under the contingent limitation to them contained in the sixth clause of the will; although three of her" children, who may survive her, are also represented here by their guardian ad litem.

Neither of the three daughters of the testator has any thing more than a life estate, devised to her, in the portion of the real estate which is afterwards contingently devised to her children ; and there is no possible doubt as to the validity of the devise of these estates for life. The invalidity of all or any of the subsequent limitations, therefore, would not present a case in which the devisees for life would be compelled to elect, between the property devised to them by the will, and their shares in the remainder which is cast upon them by operation of Iqw, as the heirs of the testator, if any other provisions of the will should eventually prove to have been inoperative and void.

I have not therefore been able to find any ground on which this court would be justified in retaining jurisdiction of this case, for the purpose of settling any of the various questions raised in the bill, in favor of the complainants. The bill must therefore be dismissed with Costs ; but without prejudice to the rights of the complainants or any of the other parties to -this suit in any future litigation.  