34 Barb. 106 | N.Y. Sup. Ct. | 1861
We cannot avoid encountering at the threshold of this case, the difficulty which in the opinion of the judge who tried the cause, was fatal to the plaintiff's action. Before we can consider or determine what estate the infant plaintiff took under the will of Robert W. Mott, in the lands described in the complaint, we are to see whether we are not to say required, but authorized to pronounce a judgment deciding or affecting that question. The defendants object to the jurisdiction of the court to entertain such an action as the present, or rather object that it would not be a proper exercise of its jurisdiction to declare the construction of this will, and even if they did not formally make such an objection, it must nevertheless be insuperable, if it exists. This court possesses all the power and exercises the functions both of the supreme court and the former court of chancery, but it has not acquired by the blending of the two tribunals any right or authority which did not belong to one or the other of their formerly separate jurisdictions. And notwithstanding all that has been said and attempted in respect to combining law and equity, the action and administration of the court is perfectly distinct in affording legal or equitable remedies, as much so as when they had to be sought in. different courts.
It is contended, however, that we must take jurisdiction of the action, as brought for a sale of the estate of the infant plaintiff, and as auxiliary to this relief, must declare what that estate is. The whole power of the court to order the sale of the lands of infants is derived from the statute. (2 R. S. 194, 195.) There is ho such original jurisdiction in a court
There is another ground upon which we were urged to entertain the question in its purely legal aspect, as a proceeding under the statute for the determination of claims to real estate. (2 R. S. 312.) .Such a case as this cannot, however, be brought within any fair construction of that statute. It is true that proceedings may be taken to compel the determination of a claim in reversion or remainder, as well as to the possession of lands. But in every case the claim must be adverse to the party in possession. A. B. in possession of lands for a particular time cannot compel the determination of a claim by 0. D. against E. F., who is supposed to be the party rightfully entitled after A. B.’s estate determines; nor can O. D., so long as A. B.’s estate lasts. But that is precisely what is attempted here. Mrs. Onderdonk is conceded on all hands to have a life estate in the premises. The claim of the defendants is not against her, nor so long as her estate lasts, but to the fee at her death, in a certain contingency, and against the heirs of her child or children. She cannot compel the determination of that claim, because it is not against her, and will not in any event interfere with her present estate. Her daughter, the plaintiff, who is a minor, cannot institute a proceeding during her mother’s life to compel the determination of such a claim, because she is not in possession. The statute gives the remedy only to persons in possession, and such is the plain reason of the thing. It is a substitute for an ejectment, although extended to a future as well as an immediate right to possession, if it be a right against the person holding the land.
I have not been able - to surmount the difficulty which defeated the plaintiffs at the trial, nor to see how this court could consistently with the uniform course of authority and
It is therefore my opinion that this judgment must he affirmed.
Emott, Brown and Scrugham, Justices.]