15 N.Y.S. 89 | N.Y. Sur. Ct. | 1891
I am of the opinion that the instrument as the last will of Enoch Marcial is utterly void, under the statute of perpetuities,
The important question to be considered is whether the surrogate .court has jurisdiction to give construction to this instrument upon the consent and re
In construing the above sections of the Code, the first and an important one tobe considered is section 1866, which is as folllows: “The validity, construction, or effect, under the laws of the state, of a testamentary disposition of real property situated within the state, or of an interest in such property, which would descend to the heir of an intestate, may be determined in an action brought for that purpose in like manner as the validity of a deed, purporting to convey land, may be determined. * * * But this section does
It may be claimed that the statutes nowhere give such courts, in terms, direct authority to construe wills of real estate on probate. Such authority is claimed to be granted under their general authority in probating wills, in connection with the authority contained in the above sections of the Code. Neither do the statutes give to such courts, in terms, jurisdiction to construe wills of real estate on the settlement of estates; but it has been long held that such authority exists as clearly implied under their general authority to settle estates and as incident thereto. Riggs v. Cragg, 89 N. Y. 479; Purdy v. Hayt, 92 N. Y. 446; Du Bois v. Brown, 1 Dem. Sur. 317; In re Verplanck, 91 N. Y. 439; In re Collyer, 4 Dem. Sur. 24; In re Thompson, 5 Dem. Sur. 117, 123; sections 2473, 2481, subd. 11, and section 2482, Code. While I find dicta in several cases decided by the surrogates of the county of New York stating that the surrogate court has not jurisdiction to construe wills of real estate on probate, yet an examination of these cases discloses the fact that the question here involved was not material in them, such cases having been decided upon other points. In the case of Prive v. Foucher, 3 Dem. Sur. 339, (decided by the learned surrogate, Rollins, in 1885,) the .surrogate assumed that the will in question related to personal property, saying that the surrogate had no jurisdiction to make a determination respecting a testamentary disposition of real property. The decision in that case turned upon an entirely different question, being that the contingency upon which the legatee under certain statutes could take had not arisen, and that therefore the methods by which the interest of such legatee could be practically ascertained need not be considered; and the case does not show that the question here concerned was raised, considered, or examined by the learned surrogate. In Jones v. Hamersley, 4 Dem. Sur. 427, (decided by Rollins, surrogate, in 1886,) the will related to both real and personal property, and the surrogate was asked only to construe that part of the will relating to personal property, under section 2624 of the Code. The surrogate held that the parties asking for construction had no standing in court; that the application was not one which would be then ascertained and passed upon by the supreme court; and adds that the provision of the Code then under discussion was enacted in the place of an earlier provision. Laws 1870, c. 359, § 11, referring to section 2624. In Re Fuller, 5 N. Y. Supp. 46, (decided in 1889, by Abbott, surrogate, Kings county,) it appears that the counsel for the contestant, Luther M. Duller, asked only for the construction of the will in respect to a personal legacy to Ella S. C. of the testatrix’s “bank-book in the South Brooklyn Savings Bank, with the contents, on her twentylfirstbirth-day,” on the ground that the bequest was contingent, and did not vest until the contingency should happen; and, if it should never happen, the legacy would lapse. Inthesame case the bequest to Lydia F. Brinkerhoff of personal property, in two items of $2,500 and $2,600, was discussed by Judge Abbott, and was not passed upon, only as postponing the same until the termination of a certain life-interest. The points presented by the counsel for the proponent did not raise the question as to the testamentary disposition of real estate; yet the learned surrogate incidentally referred to the fourth paragraph of the answer as relating to real property by saying: “The fourth paragraph of the answer refers to a disposition of real property which the surrogate has no jurisdiction to construe under section 2624 of the Code,”—a proposition too patent to be denied. In Re Ellis, 4 N. Y. Supp. 180, the only question raised or discussed related to the proposition to ask for a construction of the will on petition for ‘revocation under section 2647 of the Code; the learned surrogate (Ransom)
1 Rev. St. N. Y. p. 723, § 15, provides: “T.he absolute power of alienation shall not be suspended by any limitation or condition whatever for a longer period than during the continuance of not more than two lives in being at the creation of the estate. ”