18 N.Y.S. 3 | N.Y. Sup. Ct. | 1892
At the threshold of this investigation the question is presented whether this action can be maintained. The action was in form an action in equity to obtain a construction of the last will and testament of Joshua Whitney, deceased, but its manifest object and purpose was to determine the legal title to certain real estate which was in the possession of the appellants. The appellants contend that as the questions involved related to real estate only, and did not include the consideration of any existing trust, this suit cannot be maintained. It is quite obvious that, while the determination of this ease may have involved to some extent the construction of Joshua Whitney’s will, still such construction was necessary only to the extent of determining who had the legal title to the real estate in question, and involved no question as to any existing trust. Whether, under such circumstances, a suit in equity can be maintained for the construction of a will and the determination of the title to the real property claimed under it, where the questions involved could be determined in an action at law to recover the possession of the premises, is the precise question we are called upon to determine. The question under what circumstances such a suit might be maintained was somewhat discussed in Bowers v. Smith, 10 Paige, 193, and in that ease Chancellor Walworth said: “I am not aware of any case in which an heir at law of a testator, or a devisee, who claims a mere legal estate in the real property, where there was no trust, has been allowed to come into a court of equity for the mere purpose of obtaining a judicial construction of the provisions of the will. On the contrary, the decision of such legal questions belongs exclusively to the courts of law, except where they arise incidentally in this court in the exercise of its legitimate powers, or where the court has obtained jurisdiction of the ease for some other purpose.” Again, in Post v. Hover, 33 N. Y. 602, Denio, C. J., said: “The plaintiffs had no right to institute this suit, to settle the construction of the will. They were, at best, only heirs at law of the testator; and if the devise of the homestead was void, as they contend, they had only to bring their direct action in the nature of ejectment to recover their shares in the premises. Bowers v. Smith, 10 Paige, 193. Although the supreme court has general jurisdiction at. law and in equity, it cannot entertain an action for equitable relief, where such an action could not have been sustained in a court of equity, though they might have sued at law in another form of action.” Judge Polger, in Bailey v. Briggs, 56 N. Y. 413, had the same question under consideration, and stated the rule as follows: “It is when the court is moved in behalf of an executor, trustee, or cestui que trust, and to insure a correct administration of the power conferred by a will, that jurisdiction is had to give a construction to a doubtful or disputed clause in a will. The jurisdiction is incidental to that over trusts.” The rule as stated by Judge Polger was expressly approved by the court in Chipman v. Montgomery, 63 N. Y. 230, and Allen, J., said: “It is by reason of the jurisdiction of the court of chancery over trusts that courts having equity powers, as an incident of that jurisdiction, take cognizance of and pass upon the interpretation of wills. They do not take jurisdiction of actions brought solely for the construction of instruments of
This review of the authorities discloses that from 1843 until 1889 the highest courts and the most eminent judges of the state have uniformly held that an action in equity for the construction of a will could be maintained only by virtue of its jurisdiction over trusts, and that such jurisdiction does not exist except where the action is brought by an executor, trustee, or cestui que t?'ust to enforce, a correct administration of the powers conferred by the will. While it has been held that where a trust existed, and a suit in equity was brought to enforce the execution of it, the court having thus acquired jurisdiction might, in such a suit, construe a will, and determine such legal questions as might incidentally arise, still no such jurisdiction has been held to exist, except where the purpose of the action was to enforce the trust contained in the will. Certainly this action was not brought to enforce the execution of any trust contained in the will of Joshua Whitney. The learned referee has held that the trust created by the will was fully executed, and that the power in trust to sell the premises or convey them to Charles terminated with his death; hence there could have been no trust, or power in trust, which could have been enforced. The clear and manifest purpose of this suit was to establish the rights of the plaintiff, and the defendants, other than the appellants, to the premises in question. The rights claimed were as successors in title to the residuary legatees. Those were merely legal rights, and, if the doctrine of the authorities cited is to control, should be enforced, as such, by an action of ejectment or other legal action. The doctrine of the cases cited requires us to hold that this action cannot be maintained, unless sufficient authority to justify such an action is given by section 1866 of the ■Code of Civil Procedure. The respondents contend that that section directs the exercise of jurisdiction in such a case, even though no trust is involved. Its provisions, so far as applicable to this question, are: “The validity, con
When we refer to the statutes that have existed relating to this subject, we-find that section 1866 of the Code was not new, but a revision of section 1, c. 238, Laws 1853, which provided: “The validity of any actual or alleged devise or will of real estate may be determined by the supreme court in a proper action for that purpose, in like manner as the validity of any deed conveying, or purporting to convey, lands might be determined by such court; and thereupon any party may be enjoined from setting up or from impeaching such devise, as justice may require.” This section was amended in 1879 so as to-read as follows: “The validity of any actual or alleged devise or will of real estate may be determined by the supreme court in a proper action for that, purpose, in which all persons interested, or who claim an interest, in the question may be made parties, and such action may be brought by any heir at law of the actual or alleged testator or testatrix, or by any devisee under
When we consider the question before us in the light of the then existing statutes, of which section 1866 was a revision; the rules so uniformly established, that equity will not entertain such an action, that courts of equity will not try adverse legal claims to real estate therein, that an action in equity cannot be maintained when a full and adequate'remedy at law exists; the statement in the note to section 1866 of the amendments intended, which do not include the one claimed; the presumption that no such change was intended,—we are led to the conclusion that it was not the intent of the legislature, by the addition of the words “construction or effect,” to so change the law as it then stood as to authorize the maintenance of an action in equity, where the sole purpose was to test the legal title to real property, and the action of ejectment would afford a full and adequate remedy. Moreover, section 1866 provides that the question of the validity, construction, or effect may be determined in like manner as the validity of a deed purporting to convey land may be determined. Thus it would seem that the right to maintain
When, however, we pass the question of the respondents’ remedy, and examine the question of their rights under the will of Joshua Whitney, our conclusion is that the construction given to the will by the learned referee cannot be sustained. It is contended by the appellants, and we think justly, that although the will in question contained no express devise of the Conklin farm to Charles Whitney or his heirs, yet as its provisions, when construed in the light of the circumstances surrounding the testator when it was made, show that it was his obvious intent that Charles should have the whole benefit of the farm devised, there was a devise by implication, whereby the heirs of Charles upon his death became vested with the title in fee. On the other hand, it is claimed by the respondents that, inasmuch as the trustee appointed by the will of Joshua Whitney neglected to execute the power to sell the premises or to convey them to Charles during' his life-time, upon the death of Charles the title passed to the persons named in the residuary clause of the will, or to their heirs. When we examine this will, we find that it first makes provision for the testator’s wife, daughter Mary, and son Franklin. It then gives and devises to Washington Whitney the farm in question, to be held in trust, with power to lease, sell, or dispose of it, and to pay to Charles the rent, interest, or avails in such sums as he (Washington) might deem most prudent to meet the personal necessities of Charles and guard against his improvidence. It then provides that, if Charles should return home, become steady, and wish to occupy the farm, the trustee might, if he thought best, convey the same to him. The testator then states that he has advanced to his sons Virgil, Vincent, Joshua, and William their, shares of his estate, and hence gives them nothing by his will. Bext he appoints Thomas G. Waterman, Franklin and Washington Whitney as his executors, and gives and devises to them the residue of his property, in trust to collect all debts due him,
Although a gift by express terms is not made in a will, a legacy by implication may be upheld where the words of the will leave no doubt of the testator’s intent, and can have no other reasonable interpretation. In re Vowers, 113 N. Y. 569, 21 N. E. Rep. 690; Masterson v. Townshend, 123 N. Y. 458, 461, 25 N. E. Rep. 928; In re Lapham, 37 Hun, 15; Woodward v. James, 115 N. Y. 856, 22 N. E. Rep. 150; Phillips v. Davies, 92 N. Y. 199; Jackson v. Billinger, 18 Johns. 368; Sturges v. Cargill, 1 Sandf. Ch. 318; Cropton v. Davies, L. R. 4 C. P. 159, 166.
In Re Vowers the testator died leaving a widow, but no children. His will, after a provision made for his wife, contained the following clause: “This provision is to be accepted by my wife in lieu of her dower-right and •distributive share in my estate. She may make her election, whether she accepts this provision of my will within sixty days of the time of proving the same.” The widow, within the time specified, made her election, rejecting the provision. The residuary estate was given to a nephew of the testator. In proceedings for the probate of the will, it was held that, aside from her dower-right, the widow was entitled to such share of the personal estate as the law would have given her had the deceased died intestate, and that, although there was no express devise of such share, there was a bequest by implication. In Masterson v. Townshend the testator devised a half interest in real property to his executor to collect the rents, and pay over $600 to his wife as long as she remained unmarried, and to pay the balance to his brother, but in the discretion of his brother and the executor. If it should be deemed advisable to sell, then the executor was authorized to sell, and from the proceeds to pay to the wife $600 as long as she remained unmarried, and upon her marriage or death ail the proceeds were to be paid to his brother. The widow remarried, and it was held that there was a devise by implication of the real estate by the testator to his brother, subject only to the trust made for the testator’s widow. In Re Lapham a testator by will, which contained a general residuary clause, bequeathed to his aunt, for the exclusive benefit of her four children, the sum of $2,000, the interest and principal, if necessary, to be used for their education. There was no express direction to pay the fund, or any portion of it, to the children, in any event; but it was held that the direction to do so was fairly implied, and that the title to the fund vested in the four children in equal shares. In Woodward v. James it was held that the devise of an estate to a person as trustee was raised by implication, as the exigencies and situation required it, and that intention was indicated by the will. In Phillips v. Davies it was held that a power of sale was -conferred upon the executors by implication, extending it beyond that specifically mentioned in the-will. In Jackson v. Billinger, H., by his will, devised as follows: “My will and personal pleasure is that my son John shall .have the farm which I now live upon, two of the best negroes, all of my wearing apparel, and three geldings; but if my said son may happen to die unmarried, without lawful issue, then it is my will and pleasure that the said •estate shall descend to my next heir of the name of H., and that he may not :sell, exchange, or dispose of any part of said estate without the consent, approbation, and concurrence of my executors.” The testator,died in August, 1775, leaving five sons and eight daughters. John, the devisee, died April 20, 1817, unmarried and without issue, leaving one sister and nephews and nieces. It was there held that John; the devisee, took an estate tail by implication, and that" the devise over, depending upon indefinite failure of issue, was not good as an executory devise, and, the estate tail being converted .into an estate in fee-simple by the statute, it descended, on the death of John,
As, when we consider all the provisions of this will, we come unhesitatingly to the conclusion that it was the testator’s intent that Charles should have the full benefit of this farm, and if he should die leaving it, or any portion of it, unexpended, it should vest in his heirs, the authorities cited seem to justify us in holding that, upon the death of Charles, the title vested in Mary Lawrence and Jane O. Whitney, subject to any dower the widow might have therein. This determination is eminently just and equitable, and, as it carries into effect the manifest intent of the testator, should, we think, prevail. We are of the opinion that, upon the death of Charles, the real estate in question descended to the appellants Mary Lawrence and Jane 0. Whitney, subject to any right of dower their mother may have therein. Why the mon
Hardin, P. J„ concurred.
I think that, under section 1866 of the Code, the action is-maintainable. I concur, however, in the construction given by Brother Martin to the will, and upon that ground favor a reversal.