129 N.Y.S. 435 | N.Y. App. Div. | 1911
Before the amendment of section 2624 of the Code of Civil Procedure, in 1910 (Laws of 1910, chap. 584), the surrogate did not have the power to construe a will of real estate. (Matter of Trotter, 182 N. Y. 465.)
The decree in question having been entered in 1898, it is unnecessary to consider the effect of that amendment. Neither need we question the power of the surrogate in certain cases to construe a will so far as is necessary for the purpose of distributing an estate before him, for the reason that he was not called upon to make a distribution of the estate, and no distribution could be made until the husband’s death. If it was desirable and proper to determine as to the validity or effect of the legacy to the mission society, which apparently depended upon whether the gift to it was of more than one-half of the value of the estate, that inquiry did not make it necessary to adjudge that the real estate was personal property, or whether after the husband’s death the various parties interested would take it as real or personal property. It is unnecessary to determino. whether there is or is not a conversion of the reál estate into personal property for the purposes of eventual distribution, or whether the legacies are liens or” not upon the real estate. The surrogate had no power to construe the will as stated in the decree, and his construction is not binding upon the parties hereto. We simply determine that the surrogate’s decree does not establish that the one-half interest in this property, originally belonging to the plaintiff’s wife, is now personal property, and, therefore, incapable of partition. However the will may be construed in the respect indicated is quite immaterial here. The plaintiff before the will was made was the owner of
All concurred; Houghton, J., not sitting.
Judgment reversed and new trial granted, with costs to appellant to abide event. .