17 N.Y.S. 273 | N.Y. Sup. Ct. | 1892
No question arises upon this appeal touching the sufficiency and proof of the will, and of the disposing mind of the executrix. The appellants, at the time of the return of the citation, filed an answer, which put in issue the validity, construction, and effect of certain portions of the will, and went to trial thereon before the surrogate. Section 2624 of the Code of Civil Procedure provides as follows: “But if a party expressly puts in issue, before the surrogate, the validity, construction; or effect of any disposition of personal property, contained in the will of a resident of the state, executed within the state, the surrogate must determine the question upon rendering a decree, unless the decree refuses to admit the will to probate by reason of a failure to prove any of the matters specified in the last section.” The surrogate has, by rejecting or ignoring the second provision of the will, made a construction which the appellants deemed to be unfavorable to them. The first section of the will devised all of the property of the testatrix in this state, both real and personal, to trustees, under a trust for the payment of the rents and profits and interest to the appellants, who were her children, with a provision for the final payment of the principal over to them. The second item of the will was to the effect that, if any of the testatrix’s heirs should die leaving a wife and children, and if,'in the judgment of the trustees, the portion of the estate was “needed more for the maintenance and support of the other heir or heirs of my body, or their legal representatives, then my trustees shall retain the same in trust, as under firstly, or pay over the same to such heir or heirs, as hereinbefore stated; otherwise to be administered as under firstly of this instrument.” By the third item it was provided that if her children “die leaving no heirs, then all of my property and estate, both real and personal, shall be divided, share and share alike, to my surviving brothers and sisters, or their legal representatives.” By the fourth provision she appointed two trustees of the will, namely, her sister, Mary C. Hale, and her brother, William Seward Hale. Mary C. Hale having died, William Seward Hale is the surviving executor and trustee under the will. Without construing or determining the effect of these several provisions of the will in question, we are of the opinion that the surrogate did not have jurisdiction to make any construction of the will, or to declare any provision thereof valid or invalid. The surrogate’s court is one of well-defined and limited, although of extensive, jurisdiction. It can exercise only those powers which are given to it by statute, and such incidental powers as are required to the proper exercise of the powers expressly conferred. Unless, therefore, the warrant for the exercise of its jurisdiction of the particular case can be found in the statute, either expressly or by necessary implication, any judgment pronounced by that tribunal is void. Riggs v. Cragg, 89 N. Y. 479; Seamans v. Whitehead, 78 N. Y. 808. Until the enactment of this section of the Code of Civil Procedure, the surrogate’s court had no power, on the probate of a will, to determine the validity of any of the provisions of the
All concur.