
    Matter of the Estate of Cora V. R. Catlin, Deceased.
    
      (Surrogate’s Court, New York County,
    
    
      January, 1915.)
    Jurisdiction—Of Surrogate to Pass on Legal Devises and Legal Titles—When Petition by General Guardian to Determine Validity of Dispositions of Real and Personal Property Under' Last Will and Testament Dismissed—Code Civ. Pro., § 2615.
    Section 2615 of the Code of Civil Procedure, which purports to confer legal jurisdiction on the surrogate to pass on legal devises and legal titles, requires conformity with every rule known to legal procedure.
    A petition by the general guardian of an infant legatee, filed under section 2615 of the Code of Civil Procedure to obtain a determination as to the validity, construction or effect of dispositions of property real and personal under a last will and testament, must be dismissed, particularly where the court is not advised by the petition of the nature of the real property or whether or not it is all within, the county, and no part thereof is described by metes and bounds or even with reference to recorded conveyances.
    The dismissal of the petition, however, will be without prejudice to any proceeding or action of any kind on the same state of facts in any other court of competent jurisdiction.
    Proceeding ' under section 2615 of the Code of Civil Procedure for the construction of a will.
    John M. Shedd, for infant petitioner.
    Townsend Jones (Eliot Tuckerman, of counsel), for Lynde Catlin.
    Henry Gansevoort Sanford-, for executors.
   Fowler, S.

This is a proceeding under the new Surrogates’ Law of 1914 (Code Civ. Pro., § 2615), by the general1 guardians of an infant legatee to obtain a determination as to the validity, construction or effect of dispositions of property, both real and personal, contained in the will of Cora V. R. Catlin, deceased. As I stated in my judgment in Estate of Harden, 88 Misc. Rep. 420, the surrogate’s jurisdiction conferred bv section 2615 of the Code of Civil Procedure is both novel andl apparently vast, and beyond all precedent in conntries subject to the common law. I also then stated in substance that it was highly essential to proceed with great circumspection and deliberation under the new section so as not to unsettle titles to real property derived under wills or jeopardize interests heretofore amply protected by the law of the land.

That the jurisdiction thus attempted to be conferred on the surrogate by the new section must be subject to restrictions and limitations of some kind was apparent to me in Estate of Harden, the first matter coming before me under the new law. What some of these restrictions0 and limitations were I endeavored at that time to indicate or suggest.

There are many other restrictions on proceedings of this kind highly essential to be laid down with great care and precision before the procedure under that act can be rendered either safe or effectual for any purpose. It will then remain to be seen how conclusive the ultimate determination of the surrogate in such proceeding will be in the other courts of the State. This is a very doubtful point to my mind; but certainly the decision of the surrogate will not be conclusive at all unless all the proper parties are before this court and the proceedings thereafter taken are regular and unassailable. This is still non obstante the new Surrogates’ Code a court of limited and peculiar jurisdiction, and while in its own ancient and respectable province its decrees are regarded as in rem and binding on all the world, yet when this court proceeds in personam or under a statute nothing can be more futile than, its decrees if every step^ in the prior proceeding hasi not conformed in every respect to the law of the land. Such are some of the hazards of the situation when we proceed under the new section 2615 of the Code of Civil Procedure. I have said nothing about the constitutionality of section 2615 of the Code of Civil Procedure which is much doubted by many distinguished lawyers in this State. I generally avoid such questions in this court, if possible, for reasons I stated in Matter of Thornburgh, 72 Misc. Rep. 621.

It is not enough to hold that this character of proceedings is subject to all the principles of equitable procedure. It is subject to far more restrictions. The new law purports to confer legal jurisdiction on the surrogate to pass on legal devises and legal titles. Consequently it also requires our conformity with every rule known to legal procedure. This is of course a paradox of ¡procedural law, notwithstanding the modern fusion of legal and equitable remedies. Even now the administration of these inconsistent principles of law and equity is always separately administered in practice.

It is manifest that the title to real property is concerned in this proceeding now before me, yet I am not precisely advised by the petition of the nature of such real property, or whether or not such property is all situated in this county. Some of it is alleged to be here. Ho pieces of property are described in the petition by metes and bounds or even with reference to recorded conveyances. It is a fundamental of proceedings affecting titles to land that both the person seized and the person in possession shall be joined. As a general principle of procedure proceedings affecting the title to real property, if not brought in a court of general jurisdiction, must be brought in a local court or a court rei sitae, and indeed can only be brought there. From the foundation of our government no court of a county of this State has jurisdiction of real property out of the county. This is not a court of general jurisdiction. I say this not to minimize the great responsibilities of this court. I am not lacking in respect for the proper and peculiar jurisdiction of this court, but I will not attempt to aggrandize this court at the expense of either principle or established and binding precedents.

I now come to the merits of this proceeding. This proceeding is instituted by the general guardians of an infant. It was an old principle of our law that general guardians have no power or control over real property of the infant further than concerns the rents and profits. (Genet v. Tallmadge, 1 Johns. Ch. 561; Pond v. Curtis, 7 Wend. 45.) Can a general guardian institute such a proceeding as this whereby the infant’s title to real property may he taken away? I think not without special statutory authority.

Whenever title to real property is derived from a duly probated will or even from a devise not probated the validity of the title by our fundamental constitution of government can be determined only by a proceeding in pais unless such right and protection is formally and competently waived. I know of no provision better designed to protect the freehold and the home than this provision, and in times of stress or civil commotion it may be highly essential to the security of the citizen. I doubt if even a general guardian can waive the infant’s right to such a determination by a trial by jury in respect of his freehold. If the general guardian cannot waive the infant’s right to a trial in pais he has no locus standi in this proceeding to waive it, or, if he has, our judgment would not hind the infant in respect of his real property.

I now pass to the grounds more immediately asserted for the invocation of the process of this court in this proceeding: (1) That it will save a recourse to the more expensive action of partition; (2) that it will promote the accounting. Heither of these is a reason for recourse to this court under the new section, as I attempted to show in Matter of Harden (88 Misc. Rep. 420.)

Again I must regret that an application of this kind must he dismissed, hut it is so. . It is, however, dismissed without-prejudice to any proceeding or action of any kind on the same state of facts in any other court of competent jurisdiction.

Settle decree accordingly on notice.

NOTE ON CONSTRUCTION OF WILL —HOW OBTAINED. (Code Civil Proc., § 2615.)

Construction under former law, section 2624, Code Civ. Pro., is not mandatory. Surrogate is not required to consider and determine every question which may be raised by any of the parties as to the construction or validity of a will; he may in his discretion properly reserve or postpone the consideration of such questions until they actually arise and their determination becomes necessary to a proper disposition of the estate. (Matter of Mount, 185 N. Y. 162; aff’g., 107 App. Div. 1; Matter of Powell, 136 App. Div. 830.)

Surrogate may pursuant to this section construe a will as to the application of § 17 of the Decedent Estate Law, limiting devises and bequests to charitable and other corporations. (Matter of Talmage, 59 Misc. 130.)

The surrogate has jurisdiction to determine intestacy in the first instance in so far as the factum of a will of personalty is concerned. (Matter of Connell [1912], 75 Misc. 574.)

The surrogate has power to determine whether a will shall be admitted to probate, as a will valid to pass real property without giving to his decision the effect of an adjudication as to the validity of the devises in the will. (Matter of Merriman, 136 N. Y. 58.)

Construing a testamentary disposition of personal property is not res ad,judicata in an action for the construction of the will in reference to the real estate. (Corse v. Chapman, 153 N. Y. 467.)

As to jurisdiction of a Surrogate’s Court to determine the validity, construction, or effect of a testamentary disposition of real property, upon an application for probate, see Prive v. Foucher, 3 Dem. 339; Matter of Ullman, 67 Hun, 5; rev’d., 137 N. Y. 403.

A surrogate may construe the clause of a will creating a trust in which real and personal property are inseparably blended. (Matter of Trotter, 182 N. Y. 465; aff’g., 104 App. Div. 188, 93 New York Supp. 404.)

As to surrogate’s power to construe a will containing dispositions of real and personal property inseparably connected, see Matter of Austin, 35 App. Div. 278; Matter of Shrader, 63 Hun, 36;Matter of Morganstern, 9 Misc. 198.

Surrogate may determine construction or effect of disposition of personal property only. (Matter of Van Valkenburg, 60 Misc. 497; Matter of Arensburg, 52 Misc. 261; aff’d., 121 App. Div. 463.)

A Surrogate’s Court may construe a decedent’s will in any proceeding-where it becomes necessary in order to enable it to exercise powers, expressly conferred upon it. (Kelsey v. Van Camp, 3 Dem. 530; Matter of Perkins, 75 Hun, 129; aff’d., 145 N. Y. 599; Matter of Thompson, 5 Dem. 117.)

Where the validity and effect of certain dispositions of personal property are put in issue, it is the duty of the surrogate to pass upon the issues, before admitting the will to probate. (Effray v. Foundling Asylum, 5 Redf. 557; Hagenmeyer v. Hanselman, 2 Dem. 87; Potter v. McAlpine, 3 Dem. 108; Pfaler v. Raberg, 3 Dem. 360; Lynch v. Loretts, 4 Dem. 312; Wardlow v. Home for Incurables, 4 Dem. 473; Matter of Tifford, 5 Dem. 524; Ludlam v. Holman, 6 Dem. 194; Matter of Pettit, 6 Dem. 391; Matter of Havens, 6 Dem. 456, 2 N. Y. Supp. 639; Matter of Hall, 39 Misc. 281; Matter of Zimmerman, 22 Misc. 411; Matter of Mullen, 25 Misc. 253; Matter of Counrod, 59 N. Y. Supp. 164; Matter of Howland, 37 Misc. 114; Matter of Probate of Will of Kelman, 126 N. Y. 75.)

Where special guardians in a probate proceeding apply to the Surrogate’s Court for a determination as to the validity, construction and effect'of an attempted disposition by will, the objection that a decision of the matter is unnecessary at that time, because no distribution is then to be made, will not be heard. (Matter of Heller [1914], 86 Misc. 148.)

The surrogate’s investigation must be confined to questions arising between the parties growing out of the terms of the will, and not involving the title of the estate to the property attempted to be disposed of. (Matter of Will of Walker, 136 N. Y. 20.)

A party having no interest under the will may not ask for a construction. (Matter of Campbell, 88 Hun, 374.)

An executor cannot procure under this section a construction by a surrogate of a bequest of personalty. (Matter of Robertson, 23 Misc. 450.)

The Supreme Court will not take cognizance of a suit for the construction of a will, where a complete relief can be obtained in the Surrogate’s 'Court. Thus it will not entertain a suit to determine how a residuary estate should be divided, where the matter may be determined by the surrogate. (Moore v. De Groote [1913], 158 App. Div. 828.)

Construction denied; rights " of after-born child. A petition under this section to determine whether or not a testator by his last will had provided for his after-born child, in conformity with § 26 of the Decedent Estate Law must be dismissed but without prejudice to a proper action to enforce the infant’s rights. (Matter of Sauer [1915], 89 Misc. 105.)

A Surrogate’s Court has no jurisdiction, upon proceedings for probate, to pass upon the validity, construction or effect of a disposition of personal property contained in a will executed without the limits of this State. (Tiers v. Tiers, 2 Dem. 209.)

Where a will relates to both real and personal estate the surrogate has no jurisdiction to construe the same as to the disposition of the real property. (Matter of Davis, 59 Misc. 310.) >

There is no authority to construe a will for the purpose of defeating probate, although it may be examined to discover its bearing upon questions relating to its execution, the capacity of the testator, and the like. (Matter of Davis, 182 N. Y. 468; aff’g., 105 App. Div. 221. See also Matter of Pilsbury, 50 Misc. 367, 373.)

An application by executors and trustees for the instruction and ■direction of the court as to how to proceed with duties imposed upon them by law, is not one for the construction of a will within the meaning of this section. (Matter of Zitlsperger [1914], 88 Misc. 386.)

The mere fact that one is a party to a controversy over the probate of a will does not entitle him to insist that before the entry of a decree according probate, the court shall pass upon all questions which he may see fit to raise, respecting the validity, construction or effect of the will, or of any of its provisions. (Jones v. Hamersley, 4 Dem. 427.)

As to whether a Surrogate’s Court has the authority to direct an executor to expend funds of his decedent’s estate, to discover facts, the disclosure whereof is necessary to enable the court to construe the will as prescribed by the section, see Matter of Moderno, 5 Dem. 288.

A foreign administrator has no such interest in a will as will entitle him to ask for a construction of its provisions. (Matter of Davis, 105 App. Div. 221; aff’d., 182 N. Y. 468.)

Effect of change in revised Code. This section giving the surrogate power not previously enjoyed to construe a will in a proceeding brought for that purpose must be construed in connection with section 2510. (Matter of Bouchoux [1915], 89 Misc. 47.)

The intention of this section is to confer upon the surrogate power and jurisdiction similar to that formerly possessed by courts of , equity. (Matter of Mount, 185 N. Y. 162.)

As a court of construction, the surrogate proceeds according to the equitable canons of the former and existing courts of construction. Before construction of a will can take place, interpretations must be resorted to if there is doubt as to testator’s meaning. Interpretation is the explication of testator’s intention. In interpretation it is the duty of the court to bring the written expression of a testator in harmony with his intention. (In Re Kathan’s Will [1913], 141 N. Y. Supp. 705.)

The following cases involve the application to obtain a construction of a will under section 2615 and of the former section 2624: Matter of Houser, 12 Mills Surr. 524; Matter of Bartholomew, 11 Mills Surr. 7; Matter of Vom Saal, id. 256; Matter of Swartz, 10 id. 121, 124; Matter of Connell, id. 70, 75; Matter of Cunningham, id. 159; Matter of Meyer, 8 id. 202; Matter of Babcock, id. 434; Matter of Seymour, 7 Mills Surr. 489; Matter of Arensburg, 5 id. 556.  