
    Sidney Wallach, Individually and as Executor and Trustee of the Last Will and Testament of Karl M. Wallach, Deceased, Appellant, v. Breinchen Wallach, Individually and as Executrix and Trustee of the Last Will and Testament of Karl M. Wallach, Deceased, and Others, Respondents.
    First Department,
    April 7, 1911.
    Will — action, to construe clause appointing executors and trustees— right of executor to act as attorney—when Supreme Court will not entertain action— costs. '
    The Supreme Court will not entertain an action to construe a clause in a will directing executors and trustees to employ the plaintiff, them coexecutor and trustee, as their sole counsel and attorney in the settlement and management of the estate, there being no question as to the validity of the trust, or as to the persons entitled to take thereunder, for such question should be determined by the surrogate.
    So, too, it is for the surrogate to determine whether the plaintiff’s .coexecutors and trustees were obliged to pay him $2,000 for services as attorney and counselor as directed by the will, this being purely a matter of administration of which the Supreme Court will not assume jurisdiction although it has power to construe such clause.
    But on rendering judgment for the defendants in such action it is improper to grant the defendant’s attorney an extra allowance where the plaintiff did not ask for a money judgment, and, there being no sum of money involved in the determination, there was nothing upon which the allowance could be predicated. Costs should be allowed, however, to the guardian ad litem of infant defendants.
    Clarke and Dowling-, JJ., dissented in part.
    Appeal by the plaintiff, Sidney Wallach, individually and as executor'and trustee, etc., from a judgment of the Supreme Court in favor of the defendants, entered. in the office of the clerk of the county of New York on the 27th day of December, 1910, upon the decision of the court rendered after a trial at the New York Special Term. "...
    
      Alfred G. Reeves, for the appellant.
    
      Achilles H.. Kohn and Benjamin F. Wollman, for the respondents.
   Ingraham, P. J.:

This action was brought by the plaintiff, individually and as executor and trustee under the last will and testament of ICarl M. Wallach, deceased, against his coexecutors and trustees and those interested in. the estate. The complaint alleges that the testator died on the 15th of November, 1909, leaving a last will and testament, a copy of which is amiexed to the complaint, which will was duly admitted to probate by the surrogate of New York county. The testator had been married three times. He left him surviving" his widow and children by each of his three marriages. The. plaintiff was a son of the testator and was twenty-two years of age at the time of. the testator’s death.

After certain specific legacies the will gave to’ his éxecutors and trustees $50,000 in trust for his wife during her life and upon her death or remarriage this sum of' $50,000 was to become part of his residuary estate. All the rest, residue and remainder of his property he gave, devised and bequeathed to his executors in trust for the benefit of his children. The will '■ appointed his wife, the plaintiff, and a son-in-law executors and trustees, provided, however, that they acted without compensation for their services' as' such executors and trustees, with the following direction: “I direct that my said son Sidney shall.be employed also as sole attorney and counsel for said executors and trustees in the settlement and management of my estate, and that he shall receive out of the income of my estate the sum of Two thousand dollars ($2,000) per year for his services as said attorney and counsel.” The action was brought by the testator’s son Sidney, who was named in this clause'of the will as the one to be employed as sole' attorney and counsel for the executors and trustees, and demanded judgment for a judicial construction of- the will to the end that it might he adjudged and determined whether or not the said provisions of the said-19th clause or paragraph of said will give all the executors and trustees then appointed an equal right in the settlement and management of said estate or whether the said defendants, executors and trustees should he compelled to employ the plaintiff as the sole manager thereof, as the active executor and trustee and continue the said services of the plaintiff as intended by the testator; and also whether under that clause of the will it was necessary to continue the said business of the deceased for the proper preservation of the assets of the said estate under the managment of the plaintiff or otherwise; that the defend.ants, executors and trustees he enjoined and restrained from employing any agents or counsel other than the plaintiff for the purpose of settling and managing the property interests of said estate in and about the business of the said decedent, or from interfering directly or indirectly with the plaintiff in and about the settlement and management of the business and the property interests of the said estate, and for other and further relief.

The court found that the plaintiff was admitted to practice as an attorney and counselor at law in the State of New York in the month of June, 1910, and became twenty-three years of age in November, 1910; that the plaintiff was ready and willing to perform the services of attorney and counsel to the estate, but the other executors refused to employ him and the plaintiff has demanded payment at the rate of $2,000 per year from the other executors which they have refused to pay; that, the executors and trustees of the estate other than the plaintiff instituted a proceeding in the Surrogate’s Court for direction with reference to the custody and control of the property and assets of the estate and claimed that they were entitled to a joint control with the plaintiff herein of the property and assets of the estate; that plaintiff was a party to that proceeding; that the surrogate of New York county determined said controversy upon the merits, and by decree duly entered granted to the plaintiff and to the said defendants joint control of all the property and assets of said estate, which decree was affirmed on appeal to this court. (137 App. Div. 922.) And as conclusions of law, the court found that under the terms of the will of the, deceased the plaintiff was not entitled to have the sole or general control or management of the estate; that the provisions of the will in relation to the plain- • tiff’s connection with the estate as attorney and counsel should he regarded merely as an expression of a wish on the part of the testator which the executors and trustees may observe if in accord with their own judgment, but which they were not bound to regard; that under the terms of the will plaintiff had no authority to act as attorney and counsel for the said estate or for. the executors'and trustees in the settlement and management thereof; that plaintiff had no authority to represent any one of the executors and trustees as attorney and coun-sel until he is employed by such executors or trustees; that under the terms of the will plaintiff was not entitled to receive the annual compensation of $2,000 per year or any part thereof, and that the defendants recover from the plaintiff the costs of the action, with an extra allowance of $750 in favor of his coexecutors and trustees and an extra allowance of $250 to the guardians ad litem. Judgment was entered in accordance with this decision awarding to the defendants executors against the plaintiff $811.50 for costs and allowance, and to the guardians ad litem $307.25 costs and allowance. From that judgment the plaintiff appeals. - t

I can see no reason for the Supreme Court entertaining this action. The questions presented relate solely to the ordinary administration of the estate, which is under the control of the surrogate and-to be determined by him from time to time as the questions arise. There is no question as to the validity of the trust contained in the will; no question as to the parties to whom either the corpus of the estate or the income was payable; and the question as to whether the plaintiff was entitled to the sole control of the estate or whether that was vested in all the executors had been determined by the Surrogate’s Court in a proceeding to which the plaintiff was a party. , The only question remaining was whether the plaintiff was entitled to be employed by the estate as its attorney and counselor at law-in the settlement and management of the estate and to the payment of $2,000 per year from the estate. Such questions were purely questions of administration which were for the surrogate. Such an action is certainly not covered by section 1866 of the Code of Civil Procedure, which only relates to a testamentary disposition of real property. The question of the power of a court of equity to entertain actions for the construction of a will was discussed in Tonnele v. Wetmore (195 N. Y. 436). It was there said: “The Supreme Court has full and unlimited power in law and equity. In the exercise of its equitable power many rules have been established for the protection of the parties and the court. The court will not sit in equity to determine academic questions or simply to advise parties where real interests and questions are not involved. * * * There is a wide distinction between an entire lack of jurisdiction and power to determine a specified controversy and a question of propriety as to whether the power vested in the court shall be exercised.”

Assuming that the court had jurisdiction to construe this clause of the will, no reason is suggested why the court should exercise such jurisdiction, as the whole question merely relates to the administration of the estate, and the right of the plaintiff to a certain sum of money which the will directed should be paid to him, and is, as before stated, a question that should be determined by the surrogate upon the accounting of the executors or trustees, of which the plaintiff is one. We do not express an opinion on the other questions on this appeal.

I think, therefore, the judgment as entered should be modified by striking out all of the provisions except the dismissal of the complaint, without costs on this appeal. I also think the court below was without power to grant to the defendants’ attorney an extra allowance. Plaintiff asked for no money judgment; there was no sum of money involved in the determination of the.court; and there was nothing upon which an allowance could be predicated. I think the court, therefore, was without power to make an allowance in' addition to costs to any of the defendants except the guardian ad litem, who represented the infant defendants.

McLaugelin and Scott, JJ., concurred; Clarke and Dowling, JJ., dissented, and voted for affirmance.

Dowling, J. (dissenting):

I dissent from the modification of the judgment herein, andana for affirmance thereof, upon the grounds set forth in the opinion of Mr. Justice Greenbaum at Special Term.

, Clarice, J., concurred.

Judgment modified as directed in opinion. Settle order on notice.  