to mean, not that the Municipal Court is without jurisdiction even in actions where the title to real property comes in question, but that the Municipal Court has jurisdiction unless the defendant files an answer in a specified form and gives the bond required by section 180, in which event the plaintiff has to bring his action anew in the Supreme Court. The jurisdiction of the Municipal Court to try questions of title is held plenary, unless and until the defendant acts in a specified manner to utilize for himself the same option of a Supreme Court trial which his adversary had in choosing a forum. After stating the above holding, Mr. Justice Woodward continued in the Heiferman Case by saying:

"The whole purpose of the act appears to be to protect the defendant from being compelled to litigate his title in a court of limited jurisdiction at the behest of a plaintiff. * * * It is true the plaintiff asserts that the defendants were not prepared to deliver a merchantable title to the real estate in question, but that does not bring the case within the exclusion of the statute. The question of whether the defendants were able to give a marketable title on a particular date does not make the title to real property come in question; it does not involve the defendants' title. Title to real estate is generally defined to be 'the means whereby the owner of lands has the just possession of his property' (28 Am. & Eng. Ency. of Law [2d Ed.] 232, and authorities cited in notes), and it is only where this just right of possession is to be disturbed by the judgment that there is any limitation on the jurisdiction of the court. The title to real property does not come in question, in contemplation of the provisions of the Municipal Court Act, unless it is to be affected by the judgment—unless the rights of the owner are disturbed by the adjudication. No judgment rendered by the court in this action would involve the defendants' rights as the owners of the real estate; it would not in any wise interfere with 'the means whereby the owner of lands has the just possession of his property,' and it is only in such a case that the title is in question. The mere fact that the court was called upon to determine whether the defendants offered a merchantable title on a given date, as an incident in the decision of the present controversy, has no bearing upon the defendants' right of possession in the premises; it does not bring their title in question within the meaning of the provisions limiting the jurisdiction of the Municipal Court. That court has jurisdiction of an action to recover damages for a breach of contract where the amount involved is no larger than is here demanded, and because it is called upon to determine whether the defendants offered a merchantable title on the 17th day of October, 1908, has no more to do with their title to real estate than would be the case if it was necessary to determine that John Smith owned some other piece of real property at that time. It is merely one fact in a chain of facts determining the right of the plaintiff to the damages which he seeks to recover, and is not within the reason of the rule limiting the jurisdiction of the Municipal Court."

To summarize: "Title to real property" was not involved in this action in such a way as to deprive the Municipal Court of absolute and unlimited jurisdiction thereof. In the second place, even assuming that, had this action been brought in the Municipal Court, the defendant might, at his option, have compelled its renewal in the Supreme Court, the action is nevertheless one "which could have been brought in the Municipal Court," and the plaintiff can acquire no right to costs by instituting the action in the City Court. The policy of the Legislature has been to enable either party, at his option, to have title questions tried in the Supreme Court, and the plaintiffs' course in instituting this action in the City Court is not to be commended or encouraged by a statutory construction out of accord with the legislative purpose.

Either party may, if desired, enter an order upon this determination.

(88 Misc. Rep. 386)

In re ZITZLSPERGER'S ESTATE.

(Surrogate's Court, New York County. December, 1914.) WILLS (§ 697*)—APPLICATION FOR CONSTRUCTION-WHAT CONSTITUTES-DE

NIAL.

An application by executors and trustees for the construction of a clause of the will empowering them to pay necessary expenses in keeping certain realty in first-class condition, and for a determination whether the clause authorizes them to make certain radical repairs or changes, being an application for instructions as to how to proceed with duties imposed on them by law, and not for the construction of a will, within the meaning of Code Civ. Proc. § 2615, should be denied.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1671-1675; Dec. Dig. § 697.*]

In the matter of the estate of Mathilde Zitzlsperger, deceased. Application, pursuant to Code Civ. Proc. § 2615, for construction of a will. Application denied.

Adolph E. Gutgsell, of New York City, for petitioners.

A. Welles Stump, of New York City, special guardian.

COHALAN, S. This is an application brought on by citation, pursuant to the provisions of section 2615 of the Code of Civil Procedure, for a construction of the will of the above-named deceased. Section 2615 of the Code of Civil Procedure provides that:

"An executor, administrator with the will annexed, or any person interested in obtaining a determination as to the validity, construction or effect of any disposition of property contained in a will, may present to the Surrogate's Court in which such will was probated, a petition setting forth the facts which show his interest, * and the particular portion of such will concerning which he requests the determination of the court."

* 串

By the will of the deceased his executors and trustees, among other things, were given certain real estate in trust upon the following

terms:

"To take full charge of my aforesaid real estate and judiciously manage and control the same, collect and receive all rents, issues and profits thereof, paying therefrom all taxes, assessments, Croton water rent or charges, interest on bond and mortgage, fire insurance and all other expenses accruing in keeping my said real estate in a first-class condition."

They were directed to pay and apply the net rents, issues, and profits thereof toward the maintenance and education of Herman Krug, a grandson of the testator, until he arrived at the age of 21 years. Two of the parcels of real estate are old-fashioned five-story tenement houses without improvements, arranged for occupancy by two families on each floor and a store on the ground floor. The average monthly rents for these parcels for the years 1909, 1910, and 1911 were $291; 1912, $282; 1913, $259; 1914, $232. The petitioners ask this court to construe the sixteenth paragraph of said will, wherein they are given power to pay the necessary expenses in keeping the premises in a first-class condition, and by its decree say whether or not this paragraph of the will authorizes them to make certain

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

radical repairs or changes in the condition of the premises, by installing ranges, boilers, white enamel basins, and sinks, which improvements were not heretofore in the buildings.

The construction asked by the executors and trustees is not a construction of the will within the purview and meaning of the statute, and I am of the opinion that they will have to act upon their own responsibility in this matter. They are asking, not for a construction of the will, but rather for the instruction and direction of this court as to how to proceed with duties imposed upon them by law when they assumed the responsibilities of executors and trustees. Application denied.

(88 Misc. Rep. 393)

In re TAPLEY'S ESTATE.

(Surrogate's Court, New York County. December, 1914.)

WILLS (§ 634*)-CONSTRUCTION-INTERESTS BEQUEATHED-NATure. Where a paragraph of a will provided that “upon the death of my wife I direct the survivor of my executors to divide the balance of my estate into two equal portions: daughter,

*

*

*

串

one

* *

I give

* to my

* the other

*

her heirs and assigns; I give in trust to my executor, to pay over the net income * to" another daughter for life, and on her death "divide the same between my grandchildren," the remainder interests were vested, and not contingent; the words "upon the death of my wife" merely denoting the time of enjoyment in possession, and not fixing the time of vesting, and the division directed to be made not rendering the remainder interests contingent.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1488-1510; Dec. Dig. § 634.*]

In the matter of the estate of Jessie Fellowes Tapley, deceased. Construction of will arising on an accounting. Decree according to opinion.

Sproull, Harmer & Sproull, of New York City, for surviving trustee. Watson & Kristeller, of New York City, for Elizabeth H. Jackson and others.

COHALAN, S. Upon this accounting a question of the distribution. of the one-half share of the estate given to Jessie Fellowes Tapley, a daughter of the deecased, necessitates a construction and interpretation of the will so as to determine the proper method of distribution. The fifth paragraph of the will is the one before the court for consideration, and that part thereof sought to be construed reads as follows:

"Upon the death of my wife I direct the survivor of my executors to divide the balance of my estate into two equal portions or parts: one portion or part I give, devise and bequeath to my daughter Jessie Fellowes Tapley, her heirs and assigns, forever; the other share or portion I give, devise and bequeath to my executor surviving, in trust nevertheless to invest, reinvest, and keep the same invested and receive the rents, issues and profits thereof, and to pay over the net income or profits therefrom to my said daughter, Elizabeth Henrietta Jackson, during her life, and upon her death divide the same between my grandchildren, Harvey F. Jackson and Elizabeth May Jackson, in equal portions, share and share alike."

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Jessie Fellowes Tapley, the daughter to whom the one-half remainder interest was bequeathed, predeceased Elizabeth Henrietta Tapley, the widow and life tenant of the testator, leaving a will which was duly admitted to probate by this court, and the question is asked: Did Jessie Fellowes Tapley have a vested remainder interest under the fifth paragraph of the will, so that she might alienate it during her lifetime or dispose of it by will at her death, or was her interest contingent and dependent upon her survivorship over the life tenant?

It is argued that, where a bequest is contained in a direction to pay, divide, or distribute at a future date, time is of the essence of the gift, that the legacy is contingent, and that there can be no vesting until the time fixed for payment. But such a rule of construction will readily yield to the more favored one that the law prefers the immediate vesting of estates upon the death of the testator, although the enjoyment may be postponed. Dougherty v. Thompson, 167 N. Y. 483, 60 N. E. 760; Connelly v. O'Brien, 166 N. Y. 408, 60 N. E. 20. The words. "upon the death of my wife" do not fix or determine the time of vesting, but simply denote the time of enjoyment in possession. In Hersee v. Simpson, 154 N. Y. 496, 48 N. E. 890, the will before the Court of Appeals for construction provided as follows:

I bequeath enjoy the

"All the rest, residue and remainder of my estate, and devise to my wife, Annette C. Hersee, * 串 to same with the rents, issues and profits thereof during the term of her natural life, and from and after hcr decease my will is that all my said property be disposed of according to the statutes of the state of New York governing descent of real property and the disposition of personal estates."

And it was there held that upon the death of the testator his heirs took a vested remainder interest in the property, and that the words "from and after," referring to the death of the life tenant, did not render the remainder contingent. See, also, Livingston v. Greene, 52 N. Y. 118; Wooster v. Sage, 67 N. Y. 67; Matter of Young, 145 N. Y. 535, 40 N. E. 226, which are decisions to the same effect.

"Division," as directed by this will to be made at a future date, does not render the remainder interests contingent. For a direction in a will to divide the principal of the estate at a future date, so as to allow a life estate to intervene and to provide income for the support of a widow so long as she shall live, does not postpone the vesting of the remainder interests until after the death of the life beneficiary. Murtha v. Wilcox, 47 App. Div. 526, 529, 62 N. Y. Supp. 481, and cases cited therein.

It is argued that the remainder must be contingent, because this paragraph of the will directs the executors to divide the balance of the estate of the testator after provision is made for payment to the widow, the life tenant, of the sum of $2,000 annually from the income of the estate, and if that should prove insufficient to pay this annuity the corpus of the estate could be used for that purpose. It is maintained that there can be no certainty as to the amount or value of the remainder estate until the death of the life tenant, and that therefore there can be no vesting until that time.

In Matter of Gardner, 140 N. Y. 122, 35 N. E. 439, where executors were directed to apply for the benefit, support, and maintenance

of a brother of the testatrix during his lifetime such moneys as they might think best, with remainder over to certain beneficiaries, and one of these beneficiaries of the remainder residuary shares died before the life tenant, the Court of Appeals held that his share did not lapse upon his death, for the reason that the residue after the moneys applied for the maintenance and support of the brother of the testatrix during his life vested in the persons named, subject to the life estate. Intestacy in this case would result from a construction holding the remainder interest contingent, and the law favors testacy rather than intestacy. Schult v. Moll, 132 N. Y. 122, 30 N. E. 377. And a remainder is always to be determined as vested, unless it is clearly contingent.

I am of the opinion that these remainder interests bequeathed by the fifth paragraph of the will of the testator are vested, and not contingent; and I so hold.

Decreed accordingly.

(88 Misc. Rep. 339)

In re MARBLE.

(Surrogate's Court, Chenango County. December, 1914.)

DEATH ($ 9*)-ACTION FOR WRONGFUL DEATH-COMPROMISE-DISTRIBUTION OF PROCEEDS.

Where, in 1914, after reversal of three successive verdicts for plaintiff in an action begun in 1908 by an administratrix for the death of her intestate, the action was compromised, the amount received in excess of attorney's fees and expenses was distributable as provided by Code Civ. Proc. § 1903, as it stood prior to the amendment of 1911 (Laws 1911, c. 122); and hence, where decedent left surviving a widow, his mother, two brothers, and two sisters, the widow was not entitled to take all, to the exclusion of the next of kin.

[Ed. Note.-For other cases, see Death, Cent. Dig. § 11; Dec. Dig. § 9.*] Proceedings on the judicial settlement of the accounts of Bessie Gibson Marble, as administratrix, etc., of Ira Gibson, deceased. Ordered according to opinion.

Julien Scott, of Bainbridge, for accounting administratrix.
Hubert L. Brown, of Norwich, for objector.

HILL, S. This final accounting involves the distribution of a recovery had for the death of the intestate by reason of negligence. The intestate died on or about June 30, 1907, and letters of administration were issued on July 1, 1907. On May 5, 1908, an action was commenced in the Supreme Court by the administratrix against the Casein Manufacturing Company to recover damages for injuries sustained by reason of negligence, which injuries caused decedent's death. Such action was twice tried, each trial resulting in a verdict for plaintiff; but each of such verdicts was reversed. During the month of January, 1914, the action was settled and compromised; the estate receiving $1,250 in excess of attorney's fees and expenses. The decedent left him surviving a widow, his mother, two brothers, and two sisters. It

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes