
    Fannie Higgins et al., App’lts, v. The Union Trust Co. et al., Resp’ts.
    
      (Supreme Court, General Term, First Department
    
    
      Filed May 23, 1890.)
    
    Wills — Action for construction.
    An action for the construction of a will for the sole purpose of having it declared invalid, should not be entertained, especially where complete relief can be had in the surrogate’s court.
    Appeal from a judgment of the special term, dismissing the complaint in this action upon the merits.
    
      David S. Remsen, for app’lts ; Alfred H. Byrd, for Union Trust Company, resp’t; William C. Beecher, for infant def’t
   Van Brunt, P. J.

This action is brought by the plaintiffs as heirs-at-law and next of kin of Elizabeth J. Bryant, the testatrix herein, to construe her will for the sole purpose of having the same declared invalid.

It seems to us clear that the action ought not be entertained. Anderson v. Anderson, 112 N. Y., 104; 20 N. Y. State Rep., 344; Horton v. Cantwell, 108 N. Y., 225; 13 N. Y. State Rep., 615; Weed v. Weed, 94 N. Y., 243 ; Wager v. Wager, 89 id., 161; Chipman v. Montgomery, 63 id., 221.

If it should be claimed that the case of Wager v. Wager, 89 N. Y., 161, is an authority to the contrary, an examination of that case shows that the court expressly recognized the right of the supreme court to refuse to entertain jurisdiction where complete relief can be obtained in the surrogate’s court.

In the case at bar complete relief can be had in the surrogate’s court and there seems to be no good reason why this court should be called upon to do that which can be just as well disposed of in the surrogate’s court.

Objection is raised as to the allowances made in the decree because there is no basis shown for these allowances. As the case does not purport to contain all the evidence we.cannot tell whether it contained proof justifying the allowances or not.

The judgment should be modified by striking therefrom the words, on the merits,” and as thus modified affirmed, with costs •to the respondents.

Barrett and Bartlett, JJ., concur.  