
    Leslie C. Wead, as General Guardian, etc., of Carrie J. Horton, an Infant, etc., App’lt, v. William P. Cantwell, Executor, etc., and the First Congregational Society of Malone, Resp’ts.
    
    
      {Court of Appeals,
    
    
      Filed January %4,1888.)
    
    1. Wills — Action for. the judicial construction op — Laws 1879, CHAP. 316, REPEALED by Code Civ. Pro., §§ 1866, 1867.
    Laws 1879, chapter 316, an act relative to disputed wills, has been repealed by implication by the passage of the Code of Civil Procedure, §| 1866, 1667.
    2. Same—When court will not entertain action.
    Under Code Civil Procedure, § 1866, there must be some color of a question for construction, before the court can be called upon to construe a devise in a will.
    8. Same—Who can bring an action for construction of a will.
    The testamentary disposition of real property, or of an interest therein, the validity, construction or effect of which maybe determined under section 1866, and where its invalidity is sought to be determined, must be a disposition of some interest in real estate which majr 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. Wager v. Wager, 89 N. Y., 161, distinguished.
    4. Same—Court of equity.
    The foundation of the jurisdiction of a court of equity to construe wills rests on the jurisdiction which that court has over trusts.
    8. Same—Accumulation—When will does not direct an accumulation.
    The third clause of the will in question gives substantially the whole of the estate, real and personal, of which the testatrix died seized, to the executors in trust to receive the rents and profits during the life of Carrie J_ Horton, and during her minority to apply the same ór so much as may be necessary to her , support, maintenance and education, and after her minority to pay over to her from time to time said rents and profits. Held,. that there is no direction for an accumulation.
    6. Same—When “my” in a clause of a will should be bead “heb.’>
    The fourth clause of the will in question gave the whole of the property after Carrie’s death to her children, in equal proportions, if she shall die leaving issue, and if all her children shall then be living, or if none of her children shall have died leaving issue at the time of “ my ” death, If any of her children or descendants shall have died leaving issue, such issue to take the share which the parent would have taken by the will, if living at the time of “my” death. Held, that the word “my," as used in said clause of the will, should read “Tier."
    
    7. ABSTBACT QUESTION—COUBT WILL NOT DETEBMINB.
    Courts do not sit to determine abstract questions.
    Appeal from a judgment of the supreme court, general term, third department, modifying a judgment entered upon an order sustaining demurrers interposed to the complaint and from an order granting an extra allowance.
    The action was brought by an infant, Carrie J. Horton, and her general guardian. They ask the construction of the will of her mother. After the first and second clauses, of said will, which provide for payment of debts, for a legacy to the husband, and for care of cemetery lots, the third clause gives all the rest of the testatrix property to the executors in trust to receive the rents and profits during the life of Carrie, and during her minority to apply the same, or so much as may be necessary, to her support, maintenance and education; and after her minority to pay over to her from time to time said rents and profits.
    The fourth clause gives the whole of the. property, after Carrie’s death to her children in equal proportions, if she shall die leaving issue, and if all her children shall then be living, or if none of her children shall have died leaving issue at the time of “ my ” death. If any of her children or descendants shall have died leaving issue, such issue to take the share which the parent would have taken by the will, if living at the time of “ my ” death.
    The fifth clause directs that in case Carrie should die without issue the executors are immediately to sell and dispose of all the property. Five thousand dollars is to be held by them in trust as a perpetual fund for the poor of Malone village. The sixth clause gives the residue, after deducting said $5,000 to the First Congregational Society of Malone. The seventh clause gives a power to the executors at any time to sell and dispose of real estate, and the eighth appoints executors.
    
      Leslie W. Russell, for app’lt; W. R. Cantwell, John I. Gilbert & Joseph R. Flanders, tor resp’ts.
    
      
       Affirming 36 Hun, 528.
    
   Peckham, J.

The plaintiff claims the right to maintain this action, primarily, under the act, chapter 316, Laws of 1879, entitled: “An act to amend chapter 238 of the Laws of 1853, entitled: An act relative to disputed wills.”

The act of 1879 we think has been repealed by implication by the passage of the Code of Civil Procedure, §§ 1866, 1867. A careful perusal of both enactments must lead to the conclusion that the latter act covers the subject of thé earlier one and was plainly intended to furnish the law thereon, and by section 1867, the article in which section 1866 is contained, is made to apply to wills made before, as well as those made after it takes effect, which is another strong argument in favor of the conclusion that the act of 1879 was meant to be repealed. In such case the latter statute repeals by implication, the earlier one. Heckmann v. Pinkney, 81 N. Y., 211; People v. Jaehne, 103 N. Y., 182, 194; 3 N. Y. State Rep., 11.

It is argued on behalf of the plaintiff that the act of 1879 is saved from repeal by virtue of the provisions of the act, chapter 245, of the Laws of 1880, entitled: “An act repealing certain acts and parts of acts.”

That act repealed in so many words chapter 238 of the Laws of 1853, the first section of which was amended by the act of 1879. By sub-division 9, of section 3, of the repealing act of 1880, it was enacted that, “ the repeal of any provision of the existing laws which has been amended by a subsequent provision of those laws, not expressly repealed by this act, does not affect the subsequent provision.” The act of 1879 was not expressly repealed by the repealing act of 1880, and hence was not affected by the passage of that act. That provision has, however, no effect upon the general rule of law as to the repeal of statutes by implication, and therefore does not in any way alter the effect which the passage of a later statute covering the whole subject has upon an earlier statute upon the same subject, although the latter contains no express words of repeal.

Holding, as we do, that sections 1866 and 1867 do thus cover the subject, and were intended to take the place of the act of 1879, it was thereby repealed, although not repealed in terms by the act of 1880.

Under section 1866 of the Code of Civil Procedure, already alluded to, we do not think this action can be maintained.

In the will in question there is a plain and undoubtedly valid trust created in favor of the daughter of the testatrix, the plaintiff herein, for her life, and of substantially the whole of the estate, real and personal, of which the testatrix died seized, and after the plaintiff’s death the remainder

in fee to her children, or their issue if dead. It is only in case there shall be no children or issue at the death of the plaintiff that the provision is made for the poor of Malone and for the corporation defendant. Thus in regard to the whole of this estate, the plaintiff is simply a cestui que trust, and will remain so during all her life, the legal estate being in trustees under a valid trust to pay over to her the rents and profits so long as she lives.

We think there is no force in the criticism that the trust is void because the balance of the rents and profits, if any, during her minority, not required for the support of the plaintiff, is or may be added to the corpus of the estate and interest obtained therefrom for the cestui que trust. There is no direction for an accumulation, and the whole of such balance, if any, remains rents and profits, and must be paid over to her when of age, according to the terms of the will, as we think.

Assuming the validity of this trust therefore, about which there can in reality be no dispute or argument, what interest has this plaintiff in any other question ?

The plaintiff claims that the bequest to the poor of Malone which is made to depend upon the contingency of her death without children, is void. There may be no doubt about that proposition, and for the purpose of the argument here it has been conceded by the defendants. She also claims that the devise of the balance of the estate (upon the same contingency) to the corporation defendant is void to the extent of one-half thereof by reason of. the provisions of chapter 360 of the Laws of 1860, prohibiting under certain limitations the devise of more than one-half of the testator’s estate to any religious corporation. The counsel for the corporation defendant, for the same purpose, has conceded the invalidity of the devise to it to the extent of one-half. Assuming, therefore, the invalidity of the bequest and devise, the plaintiff further claims that she is the absolute owner of the $5,000 and the surplus over one-half of the estate. If this claim were even questionable, if it were possible to found a fair argument in relation to it, there would be ground for the plaintiff’s contention that such an action as this would he to obtain a construction of the devise.

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. Here we have no doubt that the plaintiff’s claim of absolute ownership of the $5,000, and the balance over one-half of the estate, based upon the invalidity above-mentioned, has no foundatian, whatever, and does not furnish even the color of an argument for such' construction. The most that can be argued, plausibly, for the plaintiff, is that by reason of the invalidity of the bequest of $5,000, and of the one-half of the surplus to the corporation defendant, the testatrix died intestate as to a contingent remainder in her estate to that amount, because it was undisposed of by her will, and upon her death this remainder passed to her heir, who is the plaintiff herein, and she became at once seized of such interest. That interest is a remainder contingent upon the plaintiff’s own death without children or representatives of children. See White v. Howard, 46 N. Y., 144. In other words, it is an interest which she never can herself enjoy, because of the existence of a valid trust in the whole estate, which is to continue under all contingencies during her life, and then to her children if she leave any. All that she could do would be to sell such interest, if she could find any one to buy it, or dispose of it by her will. This she can do now. 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 section 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 fife-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, for the plaintiff may marry and have children, who (or their issue), may be living at her death; in which case they take the fee, and the contingency never happens. It is not a case where any practical benefit can arise to the plaintiff in having this will authoritatively construed as to the devise of the real estate.

Nor do we think the plaintiff makes out any case under the general rules which obtain in a court of equity for the construction of wills.

The foundation of such jurisdiction rests on the jurisdiction which a court of equity has over trusts. Chipman v. Montgomery, 63 N. Y., 221; Wager v. Wager, 89 id., 161.

In her general character, as an heir-at-law of her mother, the plaintiff, if she claims that the trust for her fife is void, claims in hostility to the will, and cannot maintain an action to obtain a construction thereof. Chipman v. Montgomery, supra.

Here the trustee, under the will creating a trust for the life of plaintiff, is in possession of the estate recognizing the vandity of the trust, and assuming to carry out its provisions. The claim of the plaintiff to the absolute ownership of the $5,000, and the surplus over one-half of the balance of the estate we have seen, rests on no colorable foundation, and hence it is seen that she is, under no circumstances, entitled to obtain from the executors any personalty other than the rents and profits, which the executors do not claim themselves, but acknowledge the right of the plaintiff to receive, and which they propose to pay over in accordance with the terms of the will.

The case is wholly unlike that of Wager v. Wager (supra), for there the widow (who was also the executrix), against whom the action was commenced by the next of kin and heirs-at-law of her husband, claimed that by the terms of the bequest in the will of her husband, she owned the whole property which he left at his death, and she, therefore, took possession of the same in her own right and claimed to hold it to the exclusion of the plaintiff and the other heirs and next of kin. This court held that the plaintiffs had a right of action; that as to the personalty an executor was 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 distribution, might, when the executor claimed 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 the plaintiff’s interests were concerned, and to enable them to obtain from the executors such portions of the estate as they were entitled to. This is no such case. The plaintiff is entitled to none of the personalty of the estate, and never will be, except as it comes to her in the shape of rents and profits from the hands of the trustees under the will, the provisions of which they assent to, declare the validity of andaré engaged in carrying out.

In thus coming to the conclusion that the plaintiff "cannot maintain this action, it was necessary, to some extent, to construe the will in order to see what the status of the plaintiff is with regard to it, and hence to determine whether she could maintain this action. What has been said as to the interest of the plaintiff in the estate consequent upon the invalidity of the bequests above mentioned, cannot, of course, conclude any one not a party to this action or properly represented herein.

Whether the plaintiff took, as heir-at-law of her mother, an interest in the contingent remainder above described, or whether it goes to the heirs of the mother who will be such when the plaintiff dies without children,, we do not assume authoritatively to decide. We only say that such interest is the most {if any) that the plaintiff takes in the mother’s estate (outside of and beyond the trust), if it be assumed that the bequests spoken or are void. That she does take even that estate we do not, for we cannot decide so as to bind those who might claim it on the happening of the contingency and as the then heirs of the testatrix as against the heirs or grantees of the plaintiff.

Lastly, in this discussion we have assumed that the word “ my” as used in the fourth clause of the will should read “her.” That this is the true construction to be placed on the will cannot, as we think, admit of doubt. The testatrix is providing for the contingency of the death of her daughter, leaving issue at her (the daughter’s) death, and the whole context makes it perfectly plain that the death spoken of is the death of her daughter after her own decease, and not the death of any issue of the daughter during the life-time of the testatrix.

Upon the whole case we think there is no practical or present controversy to be determined, and the contingency may never arise in which _ the question can become a practical one, and even then, if it do hereafter arise, there is no certainty there will be any contest whatever in regard to it. At any rate, the matter is, so far as the plaintiff is concerned, a purely abstract one, and courts do not sit to determine abstract questions.

For these reasons the judgment of the supreme court should be affirmed with costs payable as therein directed.

All concur.  