
    William H. Bailey, Appellant, v. Susan B. Briggs et al., Respondents.
    (Argued April 20, 1874;
    decided April 28, 1874.)
    The jurisdiction, of a court of equity of an action for a construction of a ' — doubtful or disputed clause in a will, is incidental to that over trusts; it exists only when the court is moved on behalf of an executor, trustee or cestui que trust, and to.ensure a correct administration of the power ■conferred by a will.
    An action, under the provisions of the statutes (3 R. S., p. 313, as amended by chap. 50, Laws of 1848; chap. 116, Laws of 1854; chap. 511, Laws of 1855; chap. 173, Laws of 1860, and chap. 319, Laws of 1864; Code, § 449), for the determination of claims to real property, is not authorized against infant defendants.
    The only change wrought by the Code (§ 449), in proceedings to determine claims to real property, is that now they may be prosecuted by action. Such action must be in pursuance of the provisions of the Revised Statutes. The complaint must allege that defendants unjustly claim title to the premises. It must, also, in its prayer for judgment or otherwise, notify defendants that unless they appear and assert their claim they will be forever barred.
    A bill quia timet is a measure of precautionary justice; and a complaint to make out a case, in the nature of such a bill, must state facts showing wrongs or anticipated mischiefs which should be forestalled and prevented.
    A complaint cannot be sustained as a bill of peace where neither a great number of persons are interested in the questions in dispute, nor is the action necessary to prevent a multiplicity of actions; nor where, although the relative rights of the parties have not been adjudicated upon, yet they rest entirely upon the legal construction of a written instrument, to which both parties look as the source of them rights, and the true meaning and intention of which can be readily pronounced by a court of law, when the parties shall appear before it with an actual controversy.
    Appeal from judgment of the General Term of the Supreme Court in the third judicial department, affirming a judgment in favor of the defendants entered upon an order dismissing plaintiff’s complaint on trial.
    The plaintiff in this action alleged in his complaint, in substance, “that one Jesse Buel died October 1, 1839, seized and possessed of a large quantity of real estate,' leaving a last will and testament, which, on the 21st day of October, 1839, was admitted to probate by the surrogate of Albany county. That among other children, the said Jesse left him surviving a daughter J ulia, who afterward married one Henry 0. South wick, now deceased, and that the defendants other than ■said Julia are her children.”
    By the will the testator devised certain real estate to his daughter Julia, as follows :
    “To my daughter Julia O. Buel I give, devise, and bequeath, subject to the condition and contingency hereafter ¡mentioned, four lots on Washington street, in the city of Albany, being lots Nos. 1, 3, 5 and 7, together with all the buildings, tenements and hereditaments belonging and appertaining to each and every of them.”
    The conditions referred to are as follows :
    “All the said several gifts and devises before mentioned, to my said children Charles, Julia C. and William P., are made upon express condition, and subject to the condition •next following, that is to say, that the gift or devise to each, is made and given to each and his, her or their direct lineal descendants, should he, she or they have any, in fee simple absolutely; but in the event that either the said Charles, Julia C. and William P. shall die leaving no children or descendants of any children, then, and in such case, I hereby give, devise and bequeath the said several gifts, devises and bequests which belong to him, her or them, to the children of the survivors or survivor of them the said Charles, Julia C. and William P. equally, share and share alike, the direct lineal descendants, if any, of such of my said three children, Charles, Julia C. and William P. as may then be deceased, to be entitled to the same share which the child or children so deceased would have been entitled to if living.”
    The complaint further alleged that said Julia C. who had, more than a year prior to May 1, 1863, been in possession of the premises devised to her on that day, with her husband, conveyed them to plaintiff, with covenants of warranty and quiet possession, in fee, for a good and valuable consideration.
    
      “ That the plaintiff is now, and has been for the three years preceding the commencement of this action, in the actual possession of said premises.”
    That the said Julia and the defendant Susan B. Briggs are adults, and the other defendants are minors.
    That the defendants claim that under the will of Jesse Buel the fee simple was not vested in his daughter Julia, the plaintiff’s grantor, but that thereby she was given only a life estate, and that her children, the other defendants, as her heirs at law, were vested with the fee, subject to her said life estate.
    That the plaintiff claims that under and by said will the premises were devised to said Julia in fee absolute.
    That plaintiff is disturbed in his title by the claim of said defendants, and that thereby his title is under a cloud, and is subject to be disturbed by said defendants on the death of their mother.
    That plaintiff desires to improve the premises by erecting permanent buildings thereon, and, being in doubt as to what title he took under the deed to him by Julia, desires a legal and judicial determination and construction of the intent of the testator in the devise to Julia.
    Plaintiff demanded judgment for “a construction of the clause and conditions and contingencies thereto, in said will set forth, as to the title said Julia C. Southwick obtained to the premises above set forth, to the end that the conveyance from her to plaintiff may be established in law and equity, as a conveyance or grant of the premises aforesaid to plaintiff by said Julia C. Southwick, in fee absolute; by a construction of said will of said Jesse Buel, deceased, as a devise to said Julia 0. Southwick, in fee simple absolute; that plaintiff’s title to said premises in fee absolute maybe quieted and established, or for such other or further judgment or decree in the premises as to the court may seem meet and proper.”
    Upon the trial plaintiff’s counsel read the pleadings, when defendants’ counsel moved to dismiss the complaint upon the grounds:
    
      1st. That the court has no jurisdiction of the subject of the action.
    2d. That the complaint does not state facts sufficient to constitute a cause of action.
    The plaintiff’s counsel, thereupon, asked the court that plaintiff be allowed to amend the complaint by inserting an allegation therein, as follows: “ That the defendants claim title to such premises;” and also to amend the prayer for relief by inserting “ that defendants, and all persons claiming under them, be forever barred from any claim of reversion or freehold, or remainder of the premises described in the complaint.”
    The court refused to allow such amendment, and plaintiff excepted.
    The court granted the motion to dismiss.
    
      Nathaniel O. Moak for the appellant.
    The court erred in dismissing the complaint. (McKeon v. Lee, 4 Rob., 465; Lewis v. Mott, 36 N. Y., 399; Greason v. Ketteltas, 17 id., 465; N. Y., etc., v. N. W., etc., 23 id., 357; Barlow v. Scott, 24 id., 40; Dunnell v. Ketteltas, 16 Abb., 205; Marquat v. Marquat, 12 N. Y., 341; Emery v. Pease, 20 id,, 62; Whitney v. Whitney, 49 Barb., 323; Jones v. Buller, 20 How., 189; Armitage v. Pulver, 37 N. Y., 494; Davis v. Morris, id., 569; Bass v. Comstock, 38 id., 21; Anderson v. Hill, 53 Barb., 238; Henderson v. Jackson, 9 Abb. [N. S.], 293.) The complaint contained a good cause of action under the statute in regard to the determination of claims to real estate; and the remedy could be sought by an action under the Code. (2 R. S., 312, 313; as amended, Laws 1848, 67; Laws 1855, 943; 2 Edm. St., 321, 322; Code, § 449; Hammond v. Tillotson, 18 Barb., 332; Hager v. Hager, 38 id., 98; Mann v. Provost, 3 Abb., 446; Brown v. Leigh, 49 N. Y., 78; Holbrook v. Winsor, 23 Mich., 394; Peck v. Brown, 2 Rob., 119; 26 How., 354; Belknap v. Sealey, 2 Duer, 571, 578, 579; Bate v. Graham, 11 N. Y., 241, 242; Miller v. White, 8 Abb. [N. S.], 46.) If the action would not lie against the infant, it was error to dismiss the complaint as against the adult defendants. (Voorhies’ Code, § 274, sub. 1, and cases cited; McGuire v. Johnson, 2 Lans., 305.) A court of equity has jurisdiction of and will sustain a bill to establish a will against an heir at law by a mere legal devise not charged with any duty or trust under the will. (Colcleugh v. Boyse, 6 H. L. Cas., 1; affirming 2 De G., MacN. & G., 817; Smith’s Manual of Eq. [Am. ed.], 409; 2 Story’s Eq. Jur., § 1447; Jackson v. Rumsey, 3 J. Cas., 234; Morris v. Keyes, 1 Hill, 542; Vanderpoel v. Van Valkenburgh, 6 N. Y., 199; 2 R. S., 58, § 15; 2 Edm. St., 59; Fisher v. Hubbell, 65 Barb., 75, 90; Bowers v. Bowers, 1 Abb. [Ct. Apps. Dec.], 214; 9 N Y. L. Obs., 196; Bowers v. Smith, 10 Paige, 193; Middleton v. Sherman, 4 Y. & C. [Exch.], 358.) A bill, in the nature of a bill guia timet, lies to quiet title where adverse claims are or may be set up at some distant day. (Refd., etc., v. Parkhurst, 4 Bos., 498,499; 2 Story’s Eq. Jur., §§ 825, 826; Kerr on Injunctions, 134, 136; MacN. Select Cas., 45, marg. page note to; Dalton v. Dalton, citing anon.; 2 Ves. Sen., 415; Hemphill v. McKenna, 3 D. & W., 183; Story’s Eq. Pl, § 255, note 4 [7th ed.].) The defendants unjustly and illegally claimed title to the real estate in question. (13 N. Y., 287; Jackson v. Staats, 11 J. R., 337-351; Murphy v. Harvey, 4 Edw. Ch., 131; 2 Redf. on Wills, 643, 707, 708, §§ 11, 12; Groat v. Townsend, 2 Den., 336; 2 Broom’s Com., 221, et seq.; 1 N. Y., 483; 4 id., 56, 61; Parkman v. Bowdoin, 1 Sumn., 363; Seibert v. Wise, 70 Penn. St., 147; Ogden's appeal, id., 501; Post v. Post, 47 Barb., 72, 89; 2 Jar. on Wills, 307, marg. page; Tucker v. Tucker, 5 N. Y., 13; Massey v. Parker, 2 M. & K., 181; Ware v. Cann, 10 B. & C. [21 E. C. L.], 433; Bradley v. Piexotto, 3 Ves., 324; Cuthbert v. Park, 2 M. & K., 182, 183; Fraborn v. Wagner, 49 Barb., 43, 53,56; Oates v. Jackson, 2 Str., 1172; 7 Mod., 439, 447; Cook v. Cook, 2 Vern., 545; Sears v. Putnam, 102 Mass., 5; 2 Jar. on Wills, 307, marg. page; Patterson v. Ellis, 11 Wend., 259 ; Norris v. Beyer, 13 N. Y., 281, 283; Everitt v. Everitt, 29 id., 39, 76, 77; Jassen 
      v. Wright, 2 Bligh, 1; Doe v. Atkinson, 1 B & A. [20 E. C. L.], 944; Franklin v. Lay, 6 Mad. Ch.,258; Leigh v. Nor bury, 13 Ves., 339; Roe v. Grew, 2 Wils., 322; King v. Burchell, 1 Eden, 424; Awb., 379; Devin v. Puckey, 5 T. R., 299; Frank v. Stovin, 3 East, 548; Doe v. Applin, 4 T. R., 82; Stanley v. Leonard, 1 Eden, 87; Wright v. Pearson, id., 119; Awb., 358; Goodwright v. Pullen, 2 Ld. R., 1437; 2 Str., 729; Morris v. Ward, 8 T. R., 516, 518; Aeposs v. Smith, 7 East, 531; Doe v. Cooper, 1 id., 229; Pierson v. Vickers, 5 id., 548; Bennett v. Earl of T., 19 Ves., 170; Doe v. Goldsmith, 7 Taunt., 209; 2 E. C. L.; 2 Harsh., 517; Doe v. Harvey, 4 B. & C.; 10 E. C. L., 610.) The devise is void because it suspends the alienation for a longer time than for two lives in being. (1 R. S., 723, §§ 14, 15, 16; 1 Edm. St., 672; 1 R. S., 673; 1 Edm. St., 727; Persons v. Snook, 40 Barb., 152; Emmons v. Cairnes, 3 id., 248; Everitt v. Everitt, 29 N. Y., 39, 43, 77, 78.)
    
      Burton N. Harrison for the respondents.
    The complaint was properly dismissed. (Mann v. Fairchild, 2 Keyes, 111; Heywood v. City of Buffalo, 14 N. Y., 540; Bowers v. Smith, 10 Paige, 193; Onderdonk v. Mott, 34 Barb., 106.) Plaintiff is not entitled to any relief from a court of equity upon the complaint, except for a construction of the will. (Story’s Eq. Jur., §§ 701, 702, 710, 825, 851.) This action cannot be maintained as a bill of peace. (Story’s Eq. Jur., §§ 853-860; Eldridge v. Hill, 2 J. R., 282; Trustees of Huntington v. Nicoll, 3 J. B., 556.) The complaint did not state facts sufficient to constitute a cause of action. (Hammond v. Tillotson, 18 Barb., 332; Onderdonk v. Mott, 34 id., 115; Hager v. Hager, 38 id., 92.) The defendants were not obliged to require a jury. (Davis v. Morris, 36 N. Y., 572; McKeon v. See, 4 Robt., 465, citing 23 N. Y., 357; 24 id., 40; 17 id., 491; Bradley v. Aldrich, 40 id., 504; Mann v. Fairchild, 2 Keyes, 111.) The refusal to allow the amendments proposed on the trial was proper. (Code, § 173; 18 How., 506; 10 Abb., 372; 11 id., 42; Ford v. Ford, 53 Barb., 525.)
   Folger, J.

To legal apprehension, the first view of the complaint would indicate that the action was brought, to’ obtain the judicial construction of a clause in a last will and testament devising real estate. It avers an interest in the lands, in the plaintiff; it sets out the will under which he holds that interest; it avers that some of the defendants claim' an interest in the same lands under the same will; that there is a diversity of opinion between the plaintiff and the defendants, in relation to the construction of the devise, and the intention of the testator thereby; and the prayer of the complaint is for a construction, by the court, of the clause in the will on which the plaintiff’s right depends, and a judgment in favor of a title in fee in the plaintiff thereby.

But the complaint does not state facts which will give jurisdiction to a court of equity to entertain the case as one asking for a construction of a will. It is when the court is moved in behalf of an executor, trustee or cestui que trust,, and to ensure a correct administration of the power conferred by a will, that jurisdiction is had to give a construction to a doubtful or disputed clause in a will. The jurisdiction is incidental to that over trusts. There is nothing of that sort here. The title and possession of the plaintiff is purely a legal one. The title of the defendants, if they have any, is of the same kind. There is no trust to be enforced, nor a trustee to be directed. (Bowers v. Smith, 10 Paige, 193.)

Nor was the action instituted under the provisions of the Revised Statutes for the determination of claims to real property, as amended by subsequent enactments. (2 R. S., p. 312; Laws of 1848, chap. 50; Laws of 1854, chap. 116; Laws of 1855, chap. 511; Laws of 1860, chap. 173 ; Laws of 1864, chap. 219 ; Code, § 449.)

1st. It is brought against infant defendants. The statutes do not authorize this. The Code, section 449, permits the prosecution by action, of proceedings to compel the determination of claims to real property. But they must be in pursuance of the provisions of the Revised Statutes. The only change effected by this section of the Code, is that the proeeedings are carried on by complaint and answer and otherwise as in an action, so far as the form and manner of proceeding is concerned. The substance of the proceeding is the same. (See Austin v. Goodrich, 49 N. Y., 266; Brown v. Leigh, id., 78; Burnham v. Onderdonk, 41 id., 425.)

2d. 'It does not allege that the defendants unjustly claim title to the premises. (R. S., supra, § 2, subd. 4.) This is a requirement of the statute as potent as any other. The plaintiff insists that, having alleged the facts on which depends his own title, be that for life or in fee, and having claimed for himself a title in fee, and having alleged that the defendants claim a title in fee, subject to a life estate, he has shown the facts from which results the conclusion that they unjustly claim title to the premises. Was this so, as a result from a positive and unconditional averment, it is not so from the averments of this complaint; for the plaintiff further avers that he is in doubt as to the fee being vested in him, and shows that it depends upon the construction to be given to the words of devise in the will, and the conditions and contingencies therein, and asks that the doubt may be set at rest by a construction to be given by the court. If he is in doubt, can he be said to aver that the defendants unjustly claim a fee subject to a life estate ? Is it he or they who unjustly claim ? He does not state it with positiveness.

3d. It does not pray judgment, nor otherwise notify the defendants, nor apprize them in any way, that unless they appear and assert their claim they will be forever barred. (Id.) On the contrary, the prayer for judgment is for a construction of certain clauses in the will, under which both the plaintiff and the defendants claim title from the same testator, and asks that there be a construction thereof. There is also the prayer for alternative relief. But that is not the explicit notice required by the statute; nor does it characterize the action and the complaint, as would a specific prayer for judgment, in accordance with the provisions of the statute.

4t.h. The grantor of the plaintiff, Mrs. Southwick, is also made a party defendant. But there is no allegation in the complaint which shows any necessity or propriety in making her a party if it is a proceeding under the statute.

Nor is it an action properly brought against the defendants under the act, chapter 238 of the Laws of 1853 (p. 526). That is an act relative to disputed wills. The will here is not disputed. All parties assert its genuineness, its proper execution, its entire validity, and that the premises are devised by it, and must be held by virtue of it. The defendants concede that, by reason of its provisions, and by the deed from Mrs. Southwick, as devisee under it, the plaintiff has a good estate in the premises. They differ from him only as to the character and extent thereof. The will has been proven and established. There is no fact averred from which a necessity may be inferred to have it established by the court.

For the same reasons, the plaintiff need not invoke another branch of the jurisdiction of a court of equity, viz.: That in the exercise of which it entertains an action, to establish a will against an heir at law, at the suit of a mere legal devisee, not charged with any duty or trust under the will.” The defendants do not claim as heirs at law. They do not impugn the will. It needs not to be established. It is established, and they do not seek aught else than to uphold it, as the very source of the rights which, as they claim, will accrue to them in the future, after the death of their mother.

The plaintiff concedes that it is not an action in which a bill has been filed quia, timet, but claims that it is in the nature of such a bill. If that be so, still it does not appear that the facts stated in the complaint make out a case for that bill. A bill quia timet is in the nature of a writ of prevention, and is entertained as a measure of precautionary justice, and to forestall wrongs or anticipated mischief. As where a guardian or other trustee is squandering the estate, or when one in possession of property which another unjustly claims, is likely to lose the evidence of his title by a delay in the assertion and testing of the hostile claim. Here there is no danger of loss to the plaintiff by waste of the estate. It is he who is in the possession and enjoyment of it. His reason set up for this action is not that the estate is depreciating, but that he desires to make it better, by improvements of it, in the nature of additions to it. Hor is there danger of the evidence of his title fading out or being lost. It is of record. He needs not to secure or perpetuate any proof now resting in parol, or otherwise fleeting.

Hor is it a bill of peace. There is not a great number of persons interested in the questions in dispute or in doubt. Hor is the action necessary to prevent a multiplicity of actions. And, although the relative rights of the parties have not been adjudicated upon, and pronounced by the judgment of a court of law, yet they rest entirely in the construction which the law will place upon a paragraph in a written instrument, to which both' parties look as the source of their rights, and the true meaning and intention of which can readily be pronounced by a court of law, whenever the parties shall appear before it, with, an actual controversy.

We see nothing in the facts stated in the complaint which calls upon the court, either upon- its equity or upon its law side, to entertain the action and pronounce a judgment upon the rights of the parties under the last will and testament set forth in the pleadings. So that the judgment of a dismissal of the complaint, as not containing facts sufficient to constitute a cause of action, was correct and must be affirmed.

The case has been fully and well considered, in the opinion of the G-eneral Term, delivered by Justice Platt Pottek, and referring to that we need not elaborate further the views of this court.

We will only add, that the granting of the request to amend the pleadings, was in the discretionary power of the court at Special Term; nor do we think that there was any erroneous exercise of that discretion in the refusal.

The judgment should be affirmed with costs.

All concur.

Judgment affirmed.  