
    Warren Bryant et al., App’lts, v. Harriet F. Tracy Thompson, Impl’d, Resp't
    
    
      (Court of Appeals,
    
    
      Filed October 13, 1891.)
    
    1. Appeal—Executors and administrators—Construction of will.
    Testator, by bis will, gave bis executors a certain sum of money, as trustees of bis infant daughter during her life. He also directed that if she contested the will her share should go to his wife, the residuary legatee. The special guardian for the daughter contested the will, but it was admitted to probate, and the widow, one of the executors, desirous that the daughter should have her share, stipulated that no effect should be given to the clause revoking the legacy in case of contest, provided no appeal was tak'-n from the surrogate’s decree. The special guardian however did so appeal, and the decree was affirmed. Then the two other executors brought this action to have the court construe the will as to the disposition of the money given to the daughter, the widow declining to become a party plaintiff. The special term held that the contest by the special guardian was not one by the daughter, and that she was entitled to the bequest, and this was affirmed by the general term on the ground that she was an infant, but they held that the contest was made by her. The executors then appealed to this court and it was moved to dismiss the appeal. Held,, that the judgment rendered in the court to which the plaintiffs resorted, in the first instance was a perfect protection to them in the disposition of the fund in accordance therewith, and that they had no interest or duty in obtaining a decision according to some view of the law that they may have entertained or been advised by counsel.
    3. Same.
    The court of appeals will not entertain appeals by executors and trustees under wills from a judgment of an appellate court on a construction of a will unless it be on a point not raised at all below, or if raised the appeal must not be by the trustees alone but by the beneficiaries also.
    (Huger, Ch. J., Andrews and Gray, JJ., dissents.)
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment of special term in favor of defendant
    
      John G. Milburn, for app’lts; John E. Parsons and Charles Robinson Smith, for resp’t.
    
      
       See 37 N. Y State Rep., 431; see also 36 N. Y. State Rep., 931.
    
   O’Brien, J.

The plaintiffs, as executors and trustees of the will of Francis W.. Tracy, who died April 15, 1886, brought this action in order to procure a judicial construction of its provisions. The will and codicils dispose of a large estate, consisting of both real and personal property. Numerous large bequests were made to collateral relatives, and also to various public and private charitable institutions. The residuary estate was left to the widow. The only clause of the will with which we are concerned, in the decision of this appeal, is the one in which provision was made for the defendant, Harriet F. Tracy, who is the only child and heir-at-law of the testator. At the time of his death she was an infant, nearly nineteen years of age, and since the commencement of this action and about the month of April, 1890, she married one George Thompson. She is the daughter of a former wife who obtained a divorce from the testator many years before his death. When very young, she and her mother separated from the testator, took up their residence in the city of ¡New York, while the deceased continued to reside in Buffalo, where he died. The relations between the deceased and his daughter, and her maternal relatives had, for many years, been hostile. Her mother’s maiden name was Robinson, and the child took that name and is so designated in some parts of the case.

The testator, by a codicil to his will bearing date August 19, 1879, pi’ovided a trust fund of $100,000, the income of which was to be paid to this doughier during her life, the principal to be divided among her issue at her death. The form of the bequest was to the executors of his will in trust. The same codicil contained, however, the following provision : “ In case any beneficiary named in my said last will and testament, whether a devisee, legatee, or cestui que trust therein named, shall, in person or by another, contest the probate of my said last will and testament or any codicil thereto, or shall institute any proceedings of any kind with a view to avoid or annul my said last will and testament or any codicil thereto, or any provision in my said last will and testament, or in any such codicil contained, then and in either case I do hereby revoke all provisions in my said last will and testament or in any codicil thereto contained in favor of the person or corporation contesting or seeking to avoid such last will and testament or codicil or provision. And if such contestant shall be my daughter, then I give, devise and bequeath to my wife all the property which, in and by such last will and testament and the codicils thereto, is or shall be given to my executors in trust for my said daughter’s benefit. If my wife shall be such contestant, then I give, devise and bequeath to my executrix and executors all the property which is by my said last will and testament or any codicil thereto given to my wife, in trust for my daughter, upon the same trusts in every particular as are specified .in the second article of this codicil.”

It seems that the testator contracted a second marriage, and the wife referred to in the provisions of the will, and who took the residuary estate, and with whom he lived up to the time of his death, is the wife of this marriage.

A few days after the death of the testator his will, with the codicils, were presented to the' surrogate of .Erie county for probate by the plaintiffs, and a citation was issued and served upon the daughter, the defendant in this action. Upon the return day of the citation, the surrogate, of his own motion, appointed a special guardian for the daughter for the sole purpose of appearing and protecting her interests in the proceedings to prove the will. Subsequently, and after consultation with the defendant and her relatives, in ¡New York, and with counsel there, acting for them, the guardian interposed an answer before the surrogate, taking issue in the usual form with the allegations of the petition. The special guardian also retained counsel, and, under the direction of the surrogate, the proponents of the will were required to produce many witnesses before him for examination, and the trial continued during a number of days. It was contended in behalf of the special guardian that the testator did not possess testamentary capacity, and various witnesses, including servants of the deceased and also experts, were called to sustain that contention. The guardian, through his counsel, requested the surrogate'to refuse probate to the will. In the month of November, 1886, the surrogate entered a decree admitting the will to probate, which, among other things, contained this clause: “ Pursuant to § 2628 of the Code of Civil Procedure, it is hereby stated that the probate of said will was contested.” The daughter herself was present at the hearing, and was called and heard as a witness on behalf of the special guardian. After the entry of the decree admitting the will to probate, the widow executed, acknowledged and filed with the surrogate a paper, under seal, which recited that she was the residuary legatee and devisee of her late husband’s will which had been admitted to probate. The provision of the decree stating that it was contested, and of the will and codicil that the legacy, in case of such contest, should be deemed revoked, were referred to. It then recited that she was desirous that all the provisions of her husband’s will, respecting his daughter, should be observed, providing his reputation and capacity be not further questioned. It then stipulated that the executors (of whom she was one) shall not claim, in any way, that the right of the daughter to the provisions of the will for her benefit had been forfeited, that no effect should be given to the clause revoking the legacy in case ■of a contest by the legatee, but that the legacy should be deemed legal and valid and the trust in favor of the daughter executed. The consideration for this agreement on the part of the widow was stated to be the omission of the daughter to appeal from the decree of the surrogate, and it was in terms conditioned that no such appeal should be taken, and that no action or proceeding of any nature should be brought by or in behalf of the daughter, or by any person claiming through or under her to set aside the probate, or question the validity of the will, or the testamentary ■capacity of her husband; and in case such appeal, action or proceeding should be brought or instituted, then the stipulation and agreement should be void and of no effect. The special guardian, however, appealed from the decree of the surrogate to the general term, where the decree was affirmed.

Two of the executors then brought this action to procure, the judgment of the court as to the disposition of the one hundred thousand dollars which the daughter was to take by the provisions of the will. The widow, declining to become a party plaintiff, was made a defendant both individually and as executrix and trustee under the will. The daughter is the only other defendant, and no other question is raised by the pleadings. The ■complaint, after alleging the making of the will, its provisions, "the death of the testator and the, proceedings before the surrogate, stated that the daughter still claimed the legacy, but that the plaintiffs were advised that, by reason of the clause above quoted, and the contest, the provisions of the clause revoking the gift upon certain contingencies became operative, and that the widow was entitled to the same. The relief asked was that the court give construction to the clauses of the will touching this legacy, and the fund mentioned therein, and that it determine the conflicting claims thereto, and define the rights and duties of the plaintiff concerning the same. The special term held that the contest before the surrogate, by and in the name of the special guardian, was not a contest by the daughter in person, or by another, within the meaning of the clause in the codicil expressing the conditions upon which the legacy should vest, and that she was entitled to the bequest.

The general term affirmed the judgment, but upon the ground that the daughter being an infant, and having merely submitted her rights to the court, the revoking clause was, as to her, an attempt to subvert the course of judicial proceedings, and to deprive the court of the right and duty imposed upon it by law, in all cases, to institute, of its own motion, proper proceedings for the protection of infants, and that, as to the daughter, the condition was void as against public policy. It held that the contest must be deemed to have been made by the daughter, although the actual steps were taken by the guardian. Bryant v. Thompson, 59 Hun, 545; 37 N. Y. State Rep., 431. The widow allowed the judgment to pass without any answer or other opposition and the only parties who have appealed to this court are the two executors who brought the action. The argument of the case was accompanied by a motion in this court to dismiss the appeal. The question is, therefore, raised whether the plaintiffs have such a standing in the case as enables them to bring the appeal. The plaintiffs clearly had the right to bring this action in order to procure a judicial determination of the question as to which of two claimants was entitled to the fund, and also to obtain the instructions of the court in regard to their duties under the will. They have obtained these instructions and this determination from the highest court of the state possessing original and general jurisdiction. There were two parties who had a pecuniary interest in the decision of the question involved in the case, the daughter, who is satisfied with the result, as it is in her favor, and the widow, who does not appeal. The judgment rendered in the court to which the plaintiffs resorted in the first instance is a perfect protection to them in the disposition of the fund, in accordance therewith, and in the performance of every duty growing out of the legacy to the daughter under the provisions of the will. This being true what interest have the plaintiffs in the further prosecution of the action ? They had an interest and it was their duty to procure a judicial determination of the questions presented by the facts alleged, but no interest or duty in obtaining a decision according to some view of the law that they may have themselves entertained or have been advised by counsel.

Appeals are not allowed to this court for the purpose of settling abstract questions, however interesting or important they may be-to the general public or to the legal profession, but to correct errors injuriously affecting the rights of some party to the litigation. The plaintiffs are not concerned, in the slightest degree, in any legal sense, with the question whether the provision for the daughter be held for her or deemed revoked, under the other ■clause, and secured to the widow. The widow is not here complaining of the result in the courts below. Had she waived in writing, or in any other way binding upon her, the conditions of her stipulation touching the contest before the surrogate, after the general term had passed upon the question, it would amount to a settlement of the controversy between the only parties having a pecuniary interest in it which would prevent an appeal. Looking at the substance of things, and keeping in mind the relations which these two beneficiaries now hold to the case, we cannot see that the present appeal stands on grounds any different from what it would then. The widow, after the appeal to the general term from the decree of the surrogate, could have waived the conditions contained in her stipulation in regard to the effect of an appeal, as she had before renounced the benefits of the clause revoking the legacy in case of a contest She did not, it is true, waive these conditions expressly, but she failed, when made a party to this action, to insist upon them and it is not perceived that the plaintiffs have any interest in insisting, through an appeal to this court, upon a point which the real and only beneficiary has refused to raise for herself. The widow, as already observed, conditionally renounced the benefits of the revoking clause by her deed, and no one, we think, should be permitted to urge that this deed has become inoperative by reason of a breach of its conditions except herself, and that position she is not, it seems, inclined to take.

The plaintiffs are not seeking any benefit for themselves in the action. They have simply asked the judgment and advice of the court in regard to the disposition of property, belonging to others, which is in their care and keeping. The court, has given the judgment and advice prayed for, and the real beneficiaries do not complain. Whether the plaintiffs are entitled to be heard further in this court does not depend upon any inherent right which the plaintiffs, as suitors, have, but upon express statutory ■permission. State v. County of Kings, 125 N. Y., 312: 34 N. Y. State Rep., 782.

The right of a party to have all disputes in which he has any interest determined, according to judicial forms, in a court possessing original jurisdiction, is absolute, if indeed there are any such rights in a strict sense. But when he seeks to have the judgment reviewed in this court he must be able to point to some statute giving him the right and conferring the jurisdiction. The ■only statute relied upon as securing to the plaintiffs in this case the right to appeal is § 1294 of the Code of Civil Procedure, and under that section the right is limited to a party aggrieved. In this case the executors and trustees under a will having asked the court for directions in regard to their duty, and for a judgment as to which of two parties is entitled to a certain bequest, which directions and judgment are given and acquiesced in by both of the alleged claimants of the fund, the plaintiffs are not aggrieved, within the meaning of the statute, by the judgment rendered. The question decided in the courts below and presented by the record is, undoubtedly, one of great interest and importance and, for that reason, should not be passed upon by this court until brought here by some party having an actual and practical, as distinguished from a mere theoretical interest in the con- ' troversy.

Cases can be and are cited by the learned counsel for the appellants in which this court has entertained appeals by executors and trustees, under wills, from judgments of this character. But it is believed that they are cases either in which the point was not raised at all, or if raised, the appeal was not only by the trustees, as in this case, but by the beneficiaries also, so that a motion to dismiss, as now before us in this case, if granted, would not dispose of the case, but would still leave the same questions to be determined upon the appeal of the other parties. If, in this case, the widow had contested the right of the daughter to receive the legacy, and claimed it for herself, under the clause providing for revocation, and had appealed to this court to maintain that position, and the appeal was before us, we would not then regard this motion as of much practical importance. This was the situation when the court was asked to dismiss the appeal in most, if not all, the cases of a similar character to which our attention has been directed. An appeal to this court does not lie unless the party appealing has an interest in the controversy. People ex rel. Breslin v. Lawrence, 107 N. Y., 607; 13 N. Y. State Rep., 108; Hyatt v. Dusenbury, 106 N. Y., 603 ; 8 N. Y. State Rep., 713.

The case of The People ex rel. Burnham v. Jones et al., 110 N. Y., 509; 18 N. N. State Rep., 540, is not contrary to these views. In that case the commissioners of the land office, representing the state, made a grant of land under water to an individual. Subsequently the determination of the commissioners in making the grant was reversed by the supreme court on certiorari, and the commissioners appealed to this court, where a motion to dismiss was denied. The order appealed from in that case in effect nullified the grant made by the state, and the commissioners, as public officers representing the state, were in duty bound to defend the grant against the effect of an erroneous decision, and so were aggrieved.

We think that the plaintiffs have no interest in the question presented by the record in this case, and that the appeal should be dismissed, with costs to both parties, payable out of the estate.

Earl, Finch and Peckham, JJ., concur; Ruger, Ch. J., Andrews and Gray, JJ., dissent.  