1 Gibb. Surr. 117 | N.Y. Sur. Ct. | 1894
The facts that only three children were in existence at the making of the will, and that three were born subsequently, are conceded. It is, therefore, claimed by the special guardian that, under the provisions of 2 Revised Statutes, 65,
Section 2624 of the Code authorizes the surrogate, where a party expressly puts in issue the validity, construction or effect of any disposition of personal property contained in a will, to determine the question. He is not here required, to determine an issue as to any clause of the will disposing of personal property solely, which he might do, but of one embracing both real and personal, and so. inseparably connected and blended as to prevent a construction as to one species of property without involving the other. As the power to construe a will on the probate is one lately conferred upon the surrogate by statute, and is so far an enlargement of his jurisdiction, he cannot be permitted to go beyond it and attempt to exercise a larger power than was intended to be conferred by the legislature. Matter of Shrader, 63 Hun, 36.
The request to construe is, therefore, refused.
Ordered accordingly.