
    GILES’ ESTATE.
    
      Surrogate's Court, City and County of New York;
    
    August, 1882.
    Executors’ and Administrators’Accounting.—Surrogate’s Jurisdiction of Controversy.
    Where the validity of a debt, claim or distributive share is disputed, and has not been established, the surrogate has no jurisdiction, to pass upon it.
    
      A claim that testator had, by a contract, precluded himself from malting an effective testamentary disposition such as that contained in the will, unless manifestly devoid of seriousness and substance, raises a controversy of which the surrogate has no jurisdiction.
    
    Such a claim being interposed on a final accounting,—Held, that distribution should be postponed till an action should be had.
    
    
      It seems, that the surrogate has jurisdiction to pass on a dispute on the construction of a will, so far as necessary to enable the executor to make distribution.
    
    Final accounting oí the executors of Elizabeth Giles.
    
      
       See the two preceding cases.
    
    
      
       This appears to be the better course in such a case, rather than to assume the validity of the claim for want of power to adjudicate on it. Where a receipt by the claimant was interposed, the surrogate held it conclusive on him. Downing v. Smith, 4 Redf. 310. Where the claim had been established by judgment, and an equitable defense was interposed, the judgment was held conclusive. Stilwell v. Carpenter, 2 Abb. N. C. 238.
    
    
      
       This is a necessary power, and it is hard to see how the court of appeals can be regarded as establishing the contrary. The courts, which refuse to entertain an action for the construction of a will unless there be a trust (Powell v. Demming, 22 Hun, 235), would leave the majority of executors in an awkward predicament if- they refused to allow them to take and rely on the adjudication of the surrogate.
      Compare Meeker v. Meeker, 4 Redf. 29; Steinele v. Oechsler, 5 Id. 312.
    
   The facts are fully stated in the opinion.

Rollins, S.

Application is made for a final judicial decree settling the accounts of decedent’s executor, and determining the persons among whom the moneys in his hands are to be distributed, and the amount or share to which they are severally entitled.

On October 19, 1863, the decedent, being then a resident of the State of New York, executed a will, whereby, after making certain bequests, she divided the residue of her estate into three parts, two of which she gave to her sons William 0. Giles and J. Murray Giles, and the third to the children of her deceased daughter, Elizabeth Curtis.

On the 35th day of May, 1875, at Paris, Prance, the decedent executed a certain instrument, out of which the present contention has arisen. It commences as follows: “Whereas I, Elizabeth Giles, widow of the late George Giles, Esq. of the city of New York, United' States of America, now residing in Paris, France, am possessed, &c.”

It is not clear whether the decedent intended to sign herself or her deceased husband as “of the city of New York.” The word “ now” seems to indicate that she was referring to herself ; while, on the other hand, the absence of a comma after the abbreviated word “ Esq.” suggests the other alternative.

By this instrument the decedent, “ in consideration of natural affection and the sum of one dollar,” covenanted and promised to pay to her daughter-in-law, Kate Giles, the widow of her deceased son, J. Murray Giles, the sum of 10,000 francs annually, while she (the decedent) lived. And she agreed that all property of which she might die possessed should be equally divided among her children, and that if any of them should be deceased, the children of such should take their parent’s share. She also authorized and directed her executor to pay, after her death, to her daughter-in-law, Kate Giles, the widow of her deceased son, J. Murray Giles, one-third of the net proceeds of her estate, “in accordance with her (my) will.” This covenant was executed at Paris, France. Decedent’s signature appears opposite a scroll containing the word “sraZ,” and the instrument purports to have been signed, sealed, and delivered in the presence of two witnesses whose names are appended thereto.

Four years later, in November, 1869, about ten years before her death, the testatrix executed a codicil ^wherein she described herself “as temporarily residing in the city of Paris, in the Republic of France,” and whereby she bequeathed to her granddaughter, Bessie de Talleyrand, the sum of 15,000 francs.

Both will and codicil have been admitted to probate in this court. The payment from the general estate of the legacy of 15,000 francs to Bessie de Talleyrand is objected to by the other parties in interest, who base their opposition to such payment on the instrument whereby, as they claim, the testatrix bound herself as to the disposition she should make of her property by will. I am asked to decide whether that instrument is valid, and whether it was effectual to restrain or incapacitate the testatrix from bequeathing the legacy to her granddaughter, or indeed from making any other testamentary disposition of her estate inconsistent therewith.

Unless the claim that this instrument was of such a character as to make inoperative any subsequent will or codicil, is plainly unreasonable and without legal foundation, it seems clear to me that this court has no jurisdiction to determine the matters here at issue (Tucker v. Tucker, 4 Abb. Ct. App. Dec. 428; Bevan v. Cooper, 72 N. Y. 317). See also a list of all the reported decisions touching the surrogate’s jurisdiction over “disputed claims,” in the case of Theodore Martine’s Estate.

Those decisions are expositions of the supposed meaning of certain provisions of the Revised Statutes, as to the authority of this court in the judicial settlement of a decedent’s estate. They are somewhat corn flicting, but the doctrine of the latest and most authoritative among them seems to háve been incorporated into the Code ■ of Procedure. Mr. Throop, one of the Code commissioners, declares in his note to section 3743, that that section was purposely so worded as to put beyond dispute this vexed jurisdictional question. The language of the section in question is as follows: “Where the Validity of a debt, claim or distributive share is not disputed or has been established, the decree must determine to whom it is payable, the sum to be paid by reason thereof, and all other questions concerning the same.” This is now the sole source of the surrogate’s jurisdiction, and contains, as it seems to me, the necessary implication that where the validity of a debt, claim or distributive share is disputed or [and] has not been established, there is no authority in this tribunal to determine the respective rights of the contending parties.

These views are entirely consistent with those which the general term of the supreme court has recently expressed in Riggs v. Cragg (26 Hun, 90).

It was there held that this court had jurisdiction to construe the will of a testator so far as might be necessary to enable it to settle an executor’s accounts. Save for an obiter intimation in Bevan v. Cooper, I think that the contrary view has never been asserted by our courts. But the present controversy does not in any sense involve the construction of this decedent’s will, and the case of Riggs v. Cragg (which arose, it may be said in passing, under the Bevised Statutes and not under the Code) has therefore no application.

Now, what is the nature of this instrument ? Does it tend to establish a claim adverse to the provisions of the will and the codicil 1

That a testator can by suitable agreement, upon sufficient consideration, lawfully restrict his power of testamentary disposition there can be no doubt (Parsell v. Stryker, 41 N. Y. 480). Whether the instrument under consideration is or is not such an agreement is fairly open to dispute. The inquiry involves the considerafcion and determination of several questions of importance. For example : The ascertainment of the place of domicil of the deceased at the time of executing the agreement, is a mixed question of law and fact.

And there is also to be determined the effect and validity of such agreement under the law of the jurisdiction wherein at the time of its execution she had her domicil, and if such domicil be found to be a foreign one, the law there prevailing in regard to the instrument in question, and the inquiry how far such instrument, if otherwise valid, may be relieved of its executory character (should that be deemed a serious objection to its validity) by the performance on the part of the deceased of such of its provisions as were required to be discharged during her lifetime.

I do not feel at liberty to declare that the contention over these questions is so manifestly devoid of seriousness and substance as to warrant, my ignoring the instrument in question and the claims to which it has given origin.

And as the dispositions of the will and codicil would be very seriously affected by the agreement in the event of its being sustained, I shall, until the question of its validity and effect is passed upon by a court of competent jurisdiction, defer distribution of this estate. 
      
       Page 50 of this vol.
     
      
       Reported in 72 N. Y. 317, reversing 7 Hun, 117.
     