
    In the Matter of the Probate of the Last Will and Testament of Rhoda Fuller, Deceased.
    
      (Surrogate’s Court, Kings County,
    
    
      Filed March 4, 1889.)
    
    1. Will—Jurisdiction of surrogate to construe provisions relating
    to real property—Code Civ. Pro., § 2624.
    The surrogate, under section 2624 of the Code, has no jurisdiction to construe the provisions of a will, which relate to the disposition of real property.
    2. Same—Construction of—When trust created.
    A bequest as follows: “To my dear sister Lydia F. Brinkerhoff ” * * * “I will my bank book on Brooklyn Dime Savings Bank, containing $2,500; also, the $2,000 in trust company, corner Clinton and Montague streets, the interest to be used for her son, William H. Brinkerhoff subject to her control,” * * * “ the principal to be used for him alone in later years should he require it”—created a trust in Lydia F. Brinkerhoff for the benefit of William H. Brinkerhoff during his life, to use all the interest and such portions of the principal as he should require, and the ■unused portion of the principal remaining upon the termination of the life interest will become a part of the residuary estate. The question whether or no the trustee has applied to the use of William H. BrinkerhofE more than he required, must be postponed until the termination of the life interest.
    3. Same—When contestant charged peesonally with costs.
    Where one who is next of kin contests the probate of the will and also puts in issue the validity, construction and effect of the will, and alleges that the provisions of the will are invalid and void, and it appears that his grounds for so doing were without foundation and frivolous, the proponent will be allowed his costs to be paid by the contestant personally.
   Abbott, S.

—The objections raised by the contestant, Luther M. Fuller, to the probate of the will on the ground that the testator failed to declare the instrument propounded for probate to be her last will and testament to the subscribing witnesses are clearly without foundation, if not frivolous. I accordingly admit the will to probate.

As to that part of the answer of Luther M. Fuller which put in issue the validity, construction and effect of the disposition of testator’s estate, and the allegations that the provisions of the will are invalid and void, I am of the ■opinion, upon the authority of Jones v. Hammersly (4 Dem., 427), that it is the duty of the surrogate, under section 2624 of the Code of Civil Procedure, to construe the provisions of the will so put in issue. It is clear that if the provisions of the will are, for any reason, invalid and void, Luther M. Fuller, as next of kin, would have such an interest in the personal estate of the testator as would entitle him to share in the same under the Statute of Distributions.

I think that all of the objections raised by the contestant are without foundation, and, like the objections to the admission of the instrument to probate, frivolous.

The designation of all the institutions in which the funds of the testator were deposited is clear and explicit, and the intent of the testator with reference to each of the funds is clearly expressed, and cannot be misunderstood. I therefore decide that the provisions of the will referred to in the first, second, third, fifth and sixth paragraphs of the .answer, putting in issue the validity of the will, are valid and sufficiently definite and certain. The fourth paragraph ■of the answer refers to a disposition of real property which the surrogate has no jurisdiction to construe under section 2624 of the Code.

- The only part of the will as to which there can be any possible doubt is that embraced in the following language:

“ To my dear sister, Lydia F. Brinkerhoff wife of Aaron B , of Brooklyn, N. Y., I will my bank book on Brooklyn Dime Savings Bank, containing $2,500. Also, the $2,000 in Trust Company, corner of Clinton and Montague streets, the interest to be used for her son, William H. Brinkerhoff, subject to her control, or some reliable member of her family, the principal to be used for him alone in later years,, should he require it.”

In construing the will of a deceased person, the one and" only subject to be determined is, what is the testator’s intent, as expressed in the testamentary document. From the above quotation, it is very evident that the testator desired that William H. Brinkerhoff should enjoy the income derivable from the two funds specified and the principal, if he should require it, through or by means of his mother, Lydia F. Brinkerhoff. Counsel for both proponent and contestant seem to agree upon the very reasonable and proper construction that the part of the will above quoted -- created a trust in Lydia F. Brinkerhoff for the benefit of ■ William H. Brinkerhoff, during his life, to use all the interest of said fund and so much of the principal as he-should require; that portion of the principal remaining unused upon the termination of the life interest will become a part of the residuary estate. The question as tó whether or not the trustee has applied to the use of William H. Brinkerhoff more than he required is one the determination of which must be postponed until the termination of the-life interest, upon the accounting of the trustee to the next of kin of the testator.

The bequest to Ella L. Cochrane is valid. The gift is absolute, and the time of payment only postponed. In the-event of her decease before attaining her majority, the legacy would pass to her personal representative.

I direct decree to be entered accordingly, with costs to the proponent, to be paid by the contestant, Luther M. Fuller, personally. _  