
    
      In re Shrader’s Will.
    
      (Supreme Court, General Term, Fifth Department.
    
    January 22, 1892.)
    Wills—Construction—Jurisdiction op Surrogate.
    Under Code Civil Proo. § 2624, providing that, if the validity, construction, or effect of any disposition of personal property in a will is put in issue before a surrogate, the question must be determined by him in his decree unless the decree refuses to admit the will to probate, a surrogate has no jurisdiction to construe a will or determine its validity where there is -no disposition of personal property independent of the disposition of the real estate.
    Appeal from surrogate’s court, Cayuga county.
    Proceedings for the probate of the will of Cornelia L. Shrader, deceased. From a decree admitting the will to probate, and construing it, except as to that part of the decree which adjudged the will to be properly executed and valid, and which admitted it to probate, J. Albert Shrader and Edward V. Shrader, next of kin and heirs at law and legatees named in the will, appeal.
    Reversed.
    Argued before Dwight, P. J., and Macohber and Lewis, JJ.
    
      Teller & Hunt, for appellants. C. <?. Baldwin, for respondents.
   Macohber, J.

No question arises upon this appeal touching the sufficiency and proof of the will, and of the disposing mind of the executrix. The appellants, at the time of the return of the citation, filed an answer, which put in issue the validity, construction, and effect of certain portions of the will, and went to trial thereon before the surrogate. Section 2624 of the Code of Civil Procedure provides as follows: “But if a party expressly puts in issue, before the surrogate, the validity, construction; or effect of any disposition of personal property, contained in the will of a resident of the state, executed within the state, the surrogate must determine the question upon rendering a decree, unless the decree refuses to admit the will to probate by reason of a failure to prove any of the matters specified in the last section.” The surrogate has, by rejecting or ignoring the second provision of the will, made a construction which the appellants deemed to be unfavorable to them. The first section of the will devised all of the property of the testatrix in this state, both real and personal, to trustees, under a trust for the payment of the rents and profits and interest to the appellants, who were her children, with a provision for the final payment of the principal over to them. The second item of the will was to the effect that, if any of the testatrix’s heirs should die leaving a wife and children, and if,'in the judgment of the trustees, the portion of the estate was “needed more for the maintenance and support of the other heir or heirs of my body, or their legal representatives, then my trustees shall retain the same in trust, as under firstly, or pay over the same to such heir or heirs, as hereinbefore stated; otherwise to be administered as under firstly of this instrument.” By the third item it was provided that if her children “die leaving no heirs, then all of my property and estate, both real and personal, shall be divided, share and share alike, to my surviving brothers and sisters, or their legal representatives.” By the fourth provision she appointed two trustees of the will, namely, her sister, Mary C. Hale, and her brother, William Seward Hale. Mary C. Hale having died, William Seward Hale is the surviving executor and trustee under the will. Without construing or determining the effect of these several provisions of the will in question, we are of the opinion that the surrogate did not have jurisdiction to make any construction of the will, or to declare any provision thereof valid or invalid. The surrogate’s court is one of well-defined and limited, although of extensive, jurisdiction. It can exercise only those powers which are given to it by statute, and such incidental powers as are required to the proper exercise of the powers expressly conferred. Unless, therefore, the warrant for the exercise of its jurisdiction of the particular case can be found in the statute, either expressly or by necessary implication, any judgment pronounced by that tribunal is void. Riggs v. Cragg, 89 N. Y. 479; Seamans v. Whitehead, 78 N. Y. 808. Until the enactment of this section of the Code of Civil Procedure, the surrogate’s court had no power, on the probate of a will, to determine the validity of any of the provisions of the will, or to make any decree thereon, except either to admit it to or reject it from probate, save only that a special statute, relating only to the surrogate’s court of the county of New York, (chapter 359, Laws 1870,) conferred, such power. The will before us is one of both real and personal property. The deceased, at the time of her death, owned a house and lot in Union Springs, in New York, and an interest in other real estate in the town of El bridge, N. Y. Her personal property amounted to about $3,000. It does not appear whether the personal estate would or would not be sufficient to pay her debts. The jurisdiction of the surrogate, at the time the will was offered to probate, to make any construction thereof, or to pass upon the validity or effect of any part thereof, is confined to “any disposition of personal property.” In this case there is no disposition of personal property, except as it is connected with the disposition of the real estate of the testatrix. It would be impossible to separate the disposition of the personal property from that made of the real estate. They are essentially connected, and not separable. The surrogate himself finds that the will is one of both real and personal property, and he attempts to make no restriction of his construction, so as to confine it to the disposition made of the personal property alone. But we are of the opinion, under this section of the Code, and under the common-law limitation of the power of the surrogate’s court, that the surrogate had no jurisdiction to make a construction of this will, or pass upon the validity of any of its parts, because there was no disposition of personal property independent of and separable from the disposition of the real estate. It follows that so much of the decree as makes a construction of the will, and passes upon the validity of any portion thereof, should be reversed. That part of decree appealed from reversed, with costs of appeal to both parties, payable out of the estate.

All concur.  