147 Misc. 103 | N.Y. Sur. Ct. | 1933
The petitioner seeks a construction of a clause of the will hereinafter set forth; the respondents demand a jury trial.
The rule is now definitely settled that if the constitutional right to trial by jury inheres in the nature of the issue, such trial if seasonably demanded can be had in Surrogates’ Courts, but if the matter is cognizant in equity then the right does not inhere. (Matter of Cook, 244 N. Y. 63; Matter of Hamilton, 220 App. Div. 536; Matter of Boyle, 242 N. Y. 342.)
Before the statutory enactment giving the surrogates power to construe a will, actions for a construction could be maintained only in courts of equity as ancillary to their jurisdiction over trusts. (Chipman v. Montgomery, 63 N. Y. 221; Wager v. Wager, 89 id. 161; Matter of Coughlin, 171 App. Div. 662.)
It was stated in Matter of Erlanger (136 Misc. 784, 787) by Surrogate Foley: “ ‘ The trial by jury in all cases in which it has been heretofore used shall remain inviolate forever.’ This guaranty continues the right of trial by jury in any case where it existed immediately prior to the adoption of the Constitution. (Wynehamer v. People, 13 N. Y. 378, 427; Colon v. Lisk, 153 id. 188, 193; Matter of Wendell v. Lavin, 246 id. 115, 124.) It embraced those
The demand, therefore, by the respondents for a trial by jury is denied.
The clause of the will of the decedent involved in this proceeding is as follows:
“ Second. I give, devise and bequeath unto my sister, Margaret T. Walsh my house, and lot, known as 108 Claremont Avenue, in the City of Buffalo, N. Y., together with any household goods, furniture or effects that may be in or about the same, for her use and benefit during her lifetime, and upon her decease, I give, devise and bequeath the same unto my nephews, Timothy Callahan, James Callahan and Thomas Fraser, or their survivors or survivor of them share and share alike.”
At the date of the death of the testator, Anna Walsh, all of the legatees and devisees were living. !
In arriving at my conclusion as to the right of respondents to offer extrinsic evidence, although no effort was made to offer such proof, I am assuming that such was the intention of the respondents, and upon that assumption I am denying the right of the respondents in the light of the phraseology of the clause under construction to introduce such extrinsic evidence for the purpose of explaining the provisions of this clause.
No ambiguity is apparent from reading the will. The language is perfectly clear and certain, and under such circumstances extrinsic evidence is not admissible. (Dwight v. Fancher, 245 N. Y. 71; Matter of Tamargo,. 220 id. 225; Matter of Kavanagh, 133 Misc. 399.)
Let a decree enter accordingly.