
    (73 Hun, 353.)
    CROUSE et al. v. WILSON et al.
    (Supreme Court, General Term, Fourth Department.
    December 8, 1893.)
    Wills—Action to Construe—Equity Jurisdiction.
    Where a will directs the executors to distribute the estate among heirs at law and next of kin of testator according to the intestate laws of the .state, an action in equity by persons claiming to be heirs and next of kin, to determine, before the legacies are payable, that certain other persons are not heirs and next of kin, cannot be maintained on the theory that it is to construe the will, as only the question of fact whether plaintiffs or defendants are heirs at law and next of kin is involved; and this must be determined in a proper proceeding before the surrogate, or in an action at law, for the legacies, after they become payable.
    Appeal from special term, Onondaga county.
    Action by Jacob Crouse and others against Eiila Henrietta Kosterlitz and others to construe the will of Daniel E. Crouse, deceased. From an interlocutory judgment sustaining demurrers of defendants Kosteiiitz and Wilson to the complaint, plaintiffs appeal.
    Affirmed.
    In the complaint it is alleged that on the 21st November, 1892, Daniel E. Crouse of Syracuse, N. Y., died, leaving a last will and testament of both real and personal property; that he left, him surviving, no wife or child, and that the plaintiffs are heirs at law and next of kin of the testator; that said will was duly admitted to probate by the surrogate of Onondaga county on February 1, 1893, and letters testamentary duly issued to the defendants Graves and Nottingham, named in said will as executors, and they have duly qualified, and are now such executors; that said testator owed no debts of any considerable amount; that he owned real estate worth at least the sum of $250,000, and he owned personal property which passed, under the will, into the hands of the executors, of the value of at least $3,500,000; that, by the provisions in the will, he gave and devised to different persons named therein certain specific legacies, amounting in the aggregate to §530,000; that then in the will there came the following provisions, the construction of which is sought in the action: “(13) All the rest, residue, and remainder of my estate, both real, personal, and mixed, and wheresoever situate, I hereby direct my executors hereinafter named to pay over and distribute among my heirs and next of kin, in the same proportion that is provided by the laws of the state of New York in cases of in-testates. (14) I hereby authorize and empower my executors hereinafter named to sell, convey, and lease until sold all real estate owned by me at the time of my decease, for such price and upon such terms as they shall see fit (15) I hereby nominate, constitute, and appoint said Maurice A. Graves and Jacob A. Nottingham to be the executors of this, my last will and testament.” It is further alleged that by the terms of the will, and as provided therein, the remainder of the personal estate, after the payment of the specific legacies, passed to the said executors, and they now hold the same as trustees, and in trust ■ for the plaintiffs, the heirs and next of kin of the deceased, and that each of the plaintiffs is an heir at law and next of kin of the deceased, and the persons referred to in the thirteenth clause, and each entitled to a share in the residue of the personal estate; that the said Daniel E. Grouse was never married, and no child • was ever born to him in lawful wedlock; that the defendant Kosterlitz claims that she was the wife of said Grouse, and is now his widow, and, as such, has an interest in the personal estate; that the defendant Wilson is a minor, and on her behalf it is claimed that she is a child of the marriage of said Grouse with said Kosterlitz, and that she is the only and the sole heir of said deceased, and entitled, under the residuary clause, to the whole of the remainder of the estate, and that the plaintiffs have no right therein, and that the executors hold the same in trust for her and the said Kosterlitz. It is alleged that, by reason of the claims of Kosterlitz and Wilson, it is impossible to determine, except by a judgment of this court, who are the beneficiaries included in the term “heirs and next of Mn;” that said Kosterlitz and Wilson did not intervene and become parties tó the special proceedings before the surrogate, and presented no claim to said personal estate, and si ill they now claim, as vridow and next of kin, to be entitled to the whole; that, in order that the trust devolving on the executors may be properly executed, it is necessary to settle and determine whether the plaintiffs are the heirs and next of kin, or the defendants Kosterlitz and Wilson. Judgment is demanded “for the construction of said thirteenth clause of said will, and adjudging who are entitled to take the residue of said estate under the thirteenth clause in said will, as the surviving heir or heirs and next of kin of the said déeeased, Daniel E. Grouse; and. that it be also adjudged' and determined that the said plaintiffs are the legal heirs and next of kin of the said Daniel E. Grouse, and, as such, are entitled to take each, respectively, his proper proportion and share of the residuum of said personal estate under said thirteenth clause of said will; and that it be further adjudged and determined that said Bula Henrietta Kosterlitz was not the wife, and is not now the widow, of the said Daniel E. Grouse, and that she is not entitled to take any part of said personal estate; and that the defendant called Dorothea Edgarita Wilson is not the child of the said Daniel E. Crouse and the said Eula Henrietta Kosterlitz, born in lawful wedlock, and is not an heir of or next of Mn to said Daniel E. Grouse, and that she has no right, title, or interest in said personal estate, or any part thereof; and for such other and further relief as to the court may seem just.”
    The opinion of Mr. Justice VANN at special term is as follows:
    “According to the allegations of the complaint, the testator died seised and possessed of real estate worth not less than §250,000, and the owner of personal property worth at least $3,500,000, and owing ‘no debts of any considerable amount.’ After giving specific legacies amounting to $530,000, he directed his executors ‘to pay over and distribute all the rest, residue, and remainder’ of his estate among his ‘heirs and next of kin, in the same proportion that is provided by the laws of the state of New York in cases of intertates.’ He appointed the defendants Graves and Nottingham as his executors, and authorized them ‘to sell, convey, and lease until sold all real estate owned by’ him at the time of his decease. The plaintiffs further allego that although they are the sole heirs at law and next oí kin of the testator, and the persons referred to by him in said residuary clause, still the defendant Kosterlitz, claiming to be the widow, and the defendant Wilson, claiming to be his only lawful child, falsely insist that they are the sole heirs at law and next of kin of said testator, and that they are entitled to all of the estate that is left after payment of the specific legacies and the expenses of administration. In order that the executors as well as the plaintiffs ‘may be lawfully informed as to who are the heirs at law or next of kin of said testator, and that the trust devolving upon said executors may be properly executed,’ it becomes necessary, as it is also alleged in the complaint, ‘to settle and determine by the judgment of this court whether’ the defendant Kosterlitz is the widow, and the defendant Wilson ‘the child, of the said Daniel E. Crouse, bom in lawful wedlock, and the only heir at law and next of kin of said testator,’ or whether the plaintiffs are his heirs at law and next of kin, and, as such, entitled to take under the residuary clause. Judgment is demanded for the construction of said clause, determining who are entitled to the residuum of the estate, and adjudging that the plaintiffs are, and that the defendants Kosterlitz and Wilson are not, entitled thereto. To this complaint the defendants Kosterlitz and Wilson separately demur, upon the ground that it does not state facts sufficient to constitute a cause of action.
    “There is no allegation that the executors have refused to recognize the plaintiffs as the next of kin of the testator, or that notice, formal or informal, has been given to them by the demurring defendants that they sustain any relation to the decedent, or claim any portion of his estate, or that there is any danger that the executors will recognize them, or pay over to them as the next of kin. No accounting is demanded, and it does not appear that one has been had, or that the time for one has arrived, or that the legacies are due or payable. The plaintiffs do not claim any right that is enforceable at the present time. They do not sue for a distribution, or to recover the residuary assets. They do not show that there are any residuary assets in readiness to distribute; and it is obvious from the date of the testator’s death that the statutory period has not elapsed so that the amount of those assets can be definitely known. 4 Rev. St. (8th Ed.) p. 2562. No danger of loss is alleged, and, for aught that appears, the executors will be ready and willing to disregard the reputed claim of the supposed widow and child, and pay over to the plaintiffs as soon as the proper time for distribution arrives. No present right is shown to require protection; and, without alleging fraud, illegality, or any special reason for the interference of a court of equity, the plaintiffs demand a construction of the will, not as incidental to any other relief, but as the substantial object of the action. It is evident, however, that if this action can be maintained so as to promptly determine who are the next of kin of the testator, and entitled to the bulk of this large estate, it will prove a convenient remedy to relieve the plaintiffs from a natural apprehension, and the defendant executors from any doubt as to their duty, although they do not ask to have the doubt resolved, and thus serve a useful purpose. But neither convenience nor utility confer jurisdiction, which must be authorized either by statute or by established equitable principles. As it is not claimed that there is any statute governing the subject, resort must be had to the adjudged cases; and if they either sanction, or do not condemn, the exercise of jurisdiction in cases like this, the court will overrule the demurrer, and take cognizance of the action. If, on the other hand, the action, in its present form, cannot be maintained at the present time, without violating those principles of equity jurisprudence which, from time out of mind, have guided and controlled the action of the court, the demurrer must be sustained and the complaint dismissed.
    “The sole question presented for decision relates to the jurisdiction of the court; not in the sense that its judgment, if rendered in favor of the plaintiffs, would be void, like the decision of a criminal action by a court of equity, but in the sense that such a judgment would be an erroneous exercise of power, because it did not come within the scope of equity jurisprudence. The jurisprudence of a court of equity, except when expressly authorized by statute, depends on two facts: (1) The existence of an equitable right; and (2) the want of an adequate remedy at law. 1 Pom. Eq. Jur. (3d Ed.) § 133. The plaintiffs claim that an equitable right exists in their favor, because the executors held the personal estate in trust for the benefit of the next of kin, and that they, as the next of kin, are the beneficiaries of the trust. They argue that, as a court of equity is the peculiar forum for the administration of trusts, they have a right to ask that the instrument creating the trust be construed, and that proper instructions be given to the trustees. If there is any doubt arising out of the will itself that requires construction, it has not been pointed out. The language of the testator, as used in the paragraph in question, is clear, and his meaning obvious. In that paragraph he says: ‘All the rest, residue, and remainder of my estate, both real, personal, and mixed, and wheresoever situate, I hereby direct my executors hereinafter named to pay over and distribute among my heirs and next of kin, in the same proportion that is provided by the laws of the state of New York in cases of intestates.’ This language cannot be, and is not claimed to be, the subject of doubt. There is not an ambiguous expression or a doubtful word in the clause quoted. The phrase ‘heirs and next of kin’ has a clearly-defined and well-understood meaning in the law. The statutes of descents and distribution are old and familiar, and leave no question open to discussion in that regard. 4 Rev. St. (8th Ed.) pp. 2463, 2464; Code Civil Proc. § 1870. Moreover, there is no doubt as to the legality of the gift. The testator had the absolute right to give such portion of his estate to his heirs and next of kin as he saw fit. He violated no statute nor any rule of public policy in so doing. He simply gave a part of his property to those whom, if there had been no will, the law would have given the whole. The substance of the bequest is legal, and the form is legal. The doubt that the plaintiffs wish to have dispelled, arises, not out of the words used in the will, but as to the application of those words to a certain fact existing outside of the will. That fact involves the question, ‘Who were the decedent’s heirs and next of kin?’ which is a question of fact, not of law, and requires no construction of the will to determine it. In this respect the case resembles one recently before the court of appeals, where a testator, by his will, gave all his real and personal estate to his ‘grandchildren living in Michigan;’ and the court said: ‘The complaint questions the right of one of the grandchildren to be a legatee; * * * but the point was not argued in the appellant’s brief, and seems to have been abandoned. It could not well be pressed as constituting any ground for invoking the equity jurisdiction of the supreme court. Whether the particular grandchild was a resident of Michigan or not was a question of fact, and one that the surrogate could perfectly well dispose of.’ Garlock v. Vandevort, 128 N. Y. 377, 28 N. E. 599. Upon the assumption, therefore, that the will created such a trust as to require administration by a court of equity, no equitable right exists requiring construction, because there is nothing to construe. The plaintiffs’ rights according to the complaint are purely legal, arid in no sense equitable. If, as they allege, they are the heirs and next of kin of the decedent, when the statutory period shall have expired they can require payment of the residuary estate to them as a legal right. Simply because their claim is not yet due does not make it of an equitable nature.
    “The will is clear, valid, and operative, but, under the form of. asking for construction, the plaintiffs in fact ask the court to declare that a claim informally made by certain defendants is unfounded and' false. It does not come within the province of a court of equity to remove such a cloud from the title of the plaintiffs, nor to afford such relief, when, as in this case, no other is asked. Moreover, the trust relied upon by the plaintiffs to justify this action is not such as requires administration by a court of equity. It is not a special or express trust created in terms by the testator, but is simply an implied trust, arising by operation of law, because the executor always takes the legal title to personal estate, as a trustee. As he is to sell and divide the proceeds, the law clothes him with the legal title, in trust for the beneficiaries. Bowers v. Smith, 10 Paige, 193; Wager v. Wager, 89 N. Y. 161. It is only in this limited sense that a trust exists by virtue of the will in question, just as it exists by virtue of every will that bequeaths personal property to be distributed, not in specie, but by paying over the proceeds when converted into money. It would be an unfortunate result if such a trust should open the door for the spoliation of estates through needless litigation, under cover of actions for the construction of the instrument creating the trust. At one time courts of equity assumed jurisdiction over executors and administrators, upon the theory that they had the right to-make trustees account for the proceeds of personal property that came into their hands; but, as Mr. Pomeroy says in his. great work on Equity Jurisprudence: ‘Throughout the great majority of the United States this jurisdiction of equity, even when not expressly abrogated, has become virtually obsolete. Partly from prohibitory and partly from permissive statutes, the jurisdiction over the administration of decedents’ estates, in all ordinary cases, has been wholly withdrawn from the equity tribunals, and is exclusively exercised by the probate courts in all the states, with very few exceptions.’ 1 Pom. Eq. Jur. § 157. The main authority for this statement of the learned author, so far as the state of New York is concerned, is the leading case of Chipman v. Montgomery, 63 N. Y. 221; in deciding which, the court of appeals used the following language, which is repeated, as applicable to the case in hand: ‘The laws give full powers to the surrogate’s court to call executors and administrators to an account, and to distribute the estate among the next of kin,, and to pass upon every question that may arise, whether directly or indirectly, in the progress of the accounting and final distribution. That is the appropriate tribunal, conceding that, to a limited extent, concurrent jurisdiction exists in a court of equity. The jurisdiction of courts of equity, in respect to accounts in the course of administration and the marshaling of assets, grew out of the defects in the process and powers of ecclesiastical courts, and the early courts of probate. The jurisdiction over eases of administration was made to rest upon the notion of a constructive trust in executors and administrators, as well as the necessity of taking accounts and compelling a discovery. * * * But these considerations do not apply in ordinary cases to the settlement of estates in this state, and to withdraw a case of mere settlement of an estate disconnected with the enforcement of a special.and express trust, as distinguished from what is called a constructive trust in all administrations, from the tribunal created for that purpose with ample powers, special reasons should be assigned and facts stated to show that full and complete justice cannot be done in that court. Upon a final accounting, and that is what the plaintiffs are entitled to if they have any rights as next of kin, creditors as well as next of kin and legatees are entitled to be heard, and they may much more easily be cited before a surrogate than made parties to a formal suit in equity. * * * It is not optional with executors and administrators accounting on their own motion, or creditors, legatees or next of kin, calling them to an accounting, to pass by the surrogate’s court, having ample jurisdiction in the premises, and, without assigning any special reason, proceed by formal action in a court of equity, making all persons whose presence is necessary to a final accounting panics to the action. It would be unreasonable to subject the parties to the vexation and delay, and the estate to the unnecessary costs, of such ‘litigation.’ A will under consideration in an earlier case gave a legacy to Hobart College, payable in two years, provided within one year it performed certain conditions. The parties interested united in asking the court to determine, before the expiration of one year, whether certain admitted facts amounted to a performance of the condition by the legatee. It was held such an action would not lie; and Judge Marvin, speaking for the court of last resort, said: The college ‘does not ask the court to decide that it is entitled to the legacy, to render judgment for it, but to say whether it will he entitled to it at the time it may become due. * * * The case has been regarded mainly as a case to obtain the construction of a will. I am not aware that a legatee has ever been allowed to maintain an action for the purpose, solely, of obtaining a construction of a will. The legatee may sue for the legacy, and the question whether he is entitled will, of course,, depend upon the will, and this may involve construction. But I apprehend that a legatee would not be permitted to maintain an action to ascertain the meaning of a will, in advance of the legacy being due, or without demanding judgment for the legacy.’ Hobart College v. Fitzhugh, 27 N. Y. 130.
    “All the cases are opposed to allowing an action, brought nominally for another purpose, to be used as a cover for the construction of a will. None of them approve of an action brought solely to construe a will, and only when construction is essential as an incident to the main object does a court of equity undertake it. There must be actual and genuine litigation in respect to matters properly cognizable by a court of equity, before jurisdiction to construe will be assumed, and then only as a guide to the parties, in view of the judgment entered in determining the main controversy. Bailey v. Briggs, 56 N. Y. 407, 413; Horton v. Cantwell, 108 N. Y. 255, 15 N. E. 546; Read v. Williams, 125 N. Y. 560, 26 N. E. 730; Marlett v. Marlett, 14 Hun, 313; Powell v. Demming, 22 Hun, 235; Smith v. Edwards, 23 Hun, 223; Wead v. Cantwell, 36 Hun, 528; Adams v. Becker, (Sup.) 8 N. Y. Supp. 260. There was nothing decided in the able judgments rendered in Wager v. Wager, 89 N. Y. 161, or Cass v. Cass, 61 Hun, 460, 16 N. Y. Supp. 229, that conflicts with these views. In the former case the object of the action was to fasten upon certain property a special trust, intended to be created by the testator in favor of the plaintiffs, which trust was denied by the executrix, who claimed in her own right both the equitable and legal title; in the latter case the object of the action was to compel an accounting; and in both cases the legacies were due, the time for an accounting had arrived, and the plaintiffs had an equitable interest to protect. Courts of law construe wills constantly and freely, in order to administer justice, but never by. the way of giving advice to parties. Courts of equity construe wills for the same purpose, and sometimes, also, by way of giving advice or instruction, but never except as an incident to the chief purpose of the action.
    “If these .views are correct, the plaintiffs have mistaken their remedy by coming into a court of equity, instead of waiting until their legacy is due, and then suing for it, or applying to the surrogate’s court for relief. Surrogates have general jurisdiction to enforce the payment of legacies and to administer justice in all matters relating to the affairs of deceased persons. Code Civil Proc. § 2472. Hence the remedy of the plaintiffs at law is ample. However desirable it may be to have the question of fact as to the identity of the heirs and next of kin decided at once, I do not see how it can be determined, upon the facts alleged in the complaint, until the right to the legacy has matured by the lapse of such a period of time as to make it due and payable. The surrogate can then decide it upon the application of any one alleging title, citing all persons interested in the final accounting, in order that they may be heard. The statute empowers him to then determine any question that is necessary in order to distribute the estate in accordance with the wishes of the testator, and hence to decide, upon proper evidence, and after an opportunity for all to be heard, who are the heirs and next of kin of the decedent, so that payment can be made to them. It is also provided that if the executors refuse to pay a legacy, on demand, after the expiration of one year from date of probate, an action may be maintained by the person entitled to recover the same. Code Civil Proc. § 1819. There is no difficulty in settling the question in a variety of ways when the legacy becomes due. Until then the question is not a practical one. Courts do not sit 'to determine merely abstract questions. They will not decide which of two persons will be right if a controversy arises between them in the future over a certain subject. If a mortgagee, on learning that the mortgagor claimed that the mortgage was void for usury, should commence an action simply to settle that question before any payment had fallen due, the court would dismiss the complaint, because the question presented would be abstract. It would exist only in the mind, and its determination would not enable the court to render any judgment capable of enforcement at the time it was rendered. The mortgage would still have to be foreclosed if not paid when it became due, and two suits would thus result when only one was necessary. So the question whether A. or B. is the next of kin of a deceased person is an abstract question until the time has arrived for the one entitled to reduce his inheritance to possession. This, in the case of a legacy, cannot be done until after the expiration of one year from the time of granting letters testamentary, unless the will directs that it be sooner paid. 4 Rev. St. (8th Ed.) p. 2562, § 43. The will in question was proved, as the plaintiffs allege, and letters were issued to the executors, on the 1st of February, 1893; and, as the testator gave no directions as to when the legacies should be paid, the time of payment is governed by the statute, and that time has not yet arrived. For these reasons I think that the demurrer should be sustained, with costs, but with leave to the plaintiffs to amend their complaint, upon payment of costs within 20 days after notice of entry of the interlocutory judgment.”
    Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.
    Kennedy, Tracy, Mills & Ayling, for appellant.
    Steele, De Friese & Dickson, for respondent Kosterlitz.
    W. S. Andrews, for respondent Wilson.
   MERWIN, J.

The main argument of the learned counsel for the plaintiffs seems to be based on the theory that the action is for the construction of a will. The character of the will does not sustain this theory. There is no doubt about the intention of the testator. The residue is given to his “heirs and next of kin, in the same proportion that is provided by the laws of the state of New York in cases of intestates.” No construction is needed to carry out this provision. The statute regulates the subject. It is not claimed that the action is for an accounting. The complaint is not on that basis. From the record before us it appears that the action was commenced February 2, 1893, which was the day 'after the proof of the will. In some cases it has been held that a court of equity may, in its discretion, entertain an action against executors for an accounting. The plaintiffs are not in a position to get the benefit of such cases. There is no allegation that the estate is in danger, or that the executors desire any instructions from the court. It is very evident that the object of the action is to obtain beforehand a determination that the defendants who claim to be the widow and heir of the testator are not such widow and heir. Will an action in equity lie for such purpose? No precedent is cited that sustains the action; on the contrary, there are many cases looking the other way. In Garlock v. Vandevort, 128 N. Y. 374, 28 N. E. 599, it was said that an uncertainty as to whether a certain party was within a class to whom a bequest was made did not constitute any ground for invoking the equity jurisdiction of the supreme court. In Hobart College v. Fitzhugh, 27 N. Y. 130, a legacy was payable at a certain time on the performance of certain conditions, and it was said that an action would not lie, in advance of the time of payment, to determine whether the conditions had been properly performed. In Perry, Trusts, § 17, it is said that a bill in equity cannot be maintained simply to establish the fact of a trhst, no other relief being sought, even where its existence is denied. Upon the distribution of the estate in the surrogate’s court, that court has full power to determine to whom the legacies or distributive shares are payable. Riggs v. Cragg, 89 N. Y. 490; In re Verplanck, 91 N. Y. 439. The questions involved in this case, and the authorities on the subject, are fully and very satisfactorily discussed in the opinion of Mr. Justice VANN delivered at special term, and it is not necessary to refer to them here further. We see no good reason for disturbing his conclusion in the matter. The judgment should be affirmed. Judgment affirmed, with costs. All concur.  