
    Brunson B. Monypeny and William Monypeny, by Alpheus H. Favour, Guardian ad Litem, Appellants, v. William Monypeny, Executor and Trustee under the Last Will and Testament of William Monypeny, Deceased, and Others, Respondents, Impleaded with Maybelle M. Huntington and Others.
    Second Department,
    March 4, 1910.
    Will — action to construe foreign will — when court will not take jurisdiction.
    The courts of this State will not determine the validity and construction of a will in an action brought under section 1866 of the Code of Civil Procedure where both the plaintiffs and the defendants are residents of another ..State where most-oí the property is situate, merely because the estate includes lands in this State, if no material rights of the plaintiffs have beep, infringed and the decree could not be made effective in the foreign jurisdiction and the questions raised are purely academic.
    Appeal by the plaintiffs, Brunson B. Monypeny and another, by ■ Alpheus H. Favour, guardian ad litem, from a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Westchester on the 27tli day of October, 1909, upon the decision of the court, rendered after a trial at the Bockland Special Term, sustaining the said defendants’ demurrers to the amended complaint in an action brought under the provisions of section 1866 of the Code of Civil Procedure to establish the “ validity, construction or effect ” under the laws of this State of a testamentary disposition of real property situate in this State.
    
      Alpheus H. Favour and Joseph O. Sldnner [John J: MoKelvey with them on the brief], for the appellants.
    
      W. C. Prime and W. W. Lancaster, for the respondents William Monypeny, as executor, and Maria Monypeny, as administratrix, etc.
    
      Clifton P. Williamson, for the respondents William Monypeny,' individually, and others.
   Woodward, J.:

When this case .was before this court in Monypeny v. Monypeny (131 App. Div. 269), we held that the complaint failed to state a cause of action, differing somewhat as to the grounds: for reaching this conclusion, and the demurrers to the complaint were sustained. Subsequently the complaint was amended, and the pleader -has evidently made an effort to get his facts in such shape as to avoid the points discussed. We are persuaded, however, that the complaint does not state facts which entitle the plaintiffs to maintain this action, for there, is no material right of any of -the plaintiffs involved; it is conceded that the trustees under the will of William Monypeny, deceased, have possession of all of the property of which he died seized, and there is no allegation that there has ever been any difficulty in the way of these trustees .disposing of the real estate within this State, except that it is 'alleged that the .trustees, on selling a portion of the property, found it necessary to get deeds or releases from all of the heirs at law. But there appears to have been no difficulty in this, and no rights of the plaintiffs appear to have been interfered with in the slightest degree. The trustees, who are defendants, do not ask for any relief; they appear satisfied with their possession of the premises, and if the plaintiffs, residents of the State of Ohio, have. any grievences against the managers of the estate, who are. likewise citizens of Ohio, where the trust was created, and where the major portion of the estate is found, and where substantially all of the beneficiaries reside, that is the proper jurisdiction in which to seek relief. There it can be ' made effective; here it would be merely advisory, for want of power in the court to enforce its decree outside of the State. The questions attempted to be litigated in this action arc, as we have previously pointed out, purely academic; they do not involve -any material rights of the plaintiffs, and courts are maintained for practical purposes, not for the entertainment of litigants.

The judgment appealed from should he affirmed, with costs.

Hirschberg, P. J., Jenks, Thomas and Care, JJ., concurred.

Final judgment affirmed, with costs.  