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Surrogate's Court, New York County, December, 1914. [Vol. SS.

Egerton L. Winthrop, Jr., guardian ad litem for Dorothea Harden.

A. Perry Osborn, special guardian for Acheson Adair Harden and Ross Harden..

FOWLER, S. This is a proceeding brought on by a petition of the executors and trustees of the trusts enacted under the will of James Harden to determine the validity, construction or effect of dispositions of property contained in a will proved in this court. It is brought pursuant to the provisions of the new Surrogates' Law contained in the Code of Civil Procedure for the year 1914. By subdivision 8 of section 2510 of the Code of Civil Procedure the Surrogate's Court is given jurisdiction: "To determine the validity, construction or effect of any disposition of property contained in any will proved in his court, whenever a special proceeding is brought for that purpose." By new section 2615 of the Code of Civil Procedure: "An executor

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. If the surrogate entertains the application, a citation shall issue to all persons interested in the question to be presented to show cause why such determination should not be made. On the return of the citation the surrogate shall make such decree as justice requires.'

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Before the year 1914 the surrogate had power to construe provisions of wills in probate proceedings. Laws of 1870, chap. 359, § 11; Code Civ. Pro., § 2624.

Misc.] Surrogate's Court, New York County, December, 1914.

This jurisdiction was at first confined to personal property, but by chapter 584, Laws of 1910, it was extended to testamentary dispositions of real property. Under these laws it was held that the legislative intention was to confer on the surrogate a power and jurisdiction similar to that theretofore possessed by courts having equitable powers. Matter of Mount, 185 N. Y. 162, 167, affg. 107 App. Div. 1.

Pursuant to new section 2615 of the Code of Civil Procedure, and the petition presented in this matter, a citation was issued pro forma, and on the return thereof no objection was formally taken to the surrogate's jurisdiction of the proceeding. On the contrary, all the persons cited appeared and seemed to acquiesce in the jurisdiction of this court, and they asked for such construction as they are advised their several interests require. As this is the first instance before me under the new law, and there are many following, I felt it incumbent on me when the matter came on for argument to suggest to counsel certain difficulties. attending the application of the new act in so far as they then occurred to me. Before proceeding now to consider the subject-matter of the petition let me again briefly review the situation created in this court by the new act in matters of this character.

The jurisdiction cast upon the surrogate by the new act is novel to some extent and vast, and its exercise requires caution and profound consideration, or the title to the greatest estates in this city may be unsettled and possibly the parties in interest undone or damaged or ruined by our rashness or inconsideration. I am not disposed, therefore, to proceed on the act without the utmost care and only after the fullest consideration. It must be readily apparent to any one that the title to nearly all the property in this jurisdiction passes in some way through this court and the title

Surrogate's Court, New York County, December, 1914. [Vol. 88.

may come here for consideration under our new act. To my mind the temerity and the technical inadequacy of the new legislation under review is unexampled in the history of law making. It needs to be immediately supplemented by the utmost caution and consideration on the part of the surrogate or the law of property will be thrown into great confusion in this state.

Before reviewing briefly the nature of the jurisdiction purporting to be transferred by the new act to the surrogate, let me point out that similar legislation, but of a much more guarded character, has not been unfamiliar in other common-law countries. For example, in England the Act 22 and 23 Victoria, chapter 35, section 20, permitted executors and administrators to apply to the court in a summary way for the opinion, advice or direction of a judge on any question of administration and they would be indemnified thereby. But the court soon declined upon such an application to construe an instrument or make any order affecting the rights of parties. Matter of Lorenz' Settlement, 1 Dr. & Sm. 401. Otherwise they said the effect would be that a will affecting the most difficult questions and property, however large, might be construed and most important rights decided without proper precautions. Per Kindersley, V. C., Matter of Lorenz' Settlement, 1 Dr. & Sm. 404. Finally when a difficult question of law was involved the parties were, in England, put to their action. Matter of Mockett's Will, Johns. 628. Doubtless there is some difference between the scope of the Act 22 and 23 Victoria, chapter 35, and the scope of the act now under my consideration. The object of the Victorian act was to assist the executors in little matters of discretion. The illustrative point here is that the interests of property in England soon made it necessary to limit the application of that act. Can there be a better practical dem

Misc.] Surrogate's Court, New York County, December, 1914.

onstration of the fact that short cuts to relief are often full of danger to estates.

By the new legislation the power is attempted to be conferred on this court to determine the validity, construction or effect of any disposition of property, both real and personal, contained in any will. This grant of jurisdiction involves the powers formerly comImitted either to the courts of law or the courts of equity under our system of jurisprudence. Nay, more, it involves both jurisdictions. There are, however, obvious inherent limitations of this grant of jurisdiction. Certainly it cannot confer a power or jurisdiction on the surrogate to determine the validity of any title by devise, where the prior remedy was an action at law or one in the nature of ejectment or to try title. Brady v. McCosker, 1 N. Y. 214; Chipman v. Montgomery, 63 id. 221; Weed v. Weed, 94 id. 243; Anderson v. Anderson, 112 id. 104, 114; Corley v. McElmeel, 149 id. 228, 236, 238; Jones v. Richards, 24 Misc. Rep. 625; Whitney v. Whitney, 63 Hun, 59; McKinley v. Van Dusen, 76 id. 200. Nor, as I think, can the right of the infant parties to a trial by jury be waived by special guardians appointed for this proceeding. Such special guardians are really guardians ad litem or guardians appointed ad hoc only.

If the petition in this court for construction of a will could properly be converted and treated as an ejectment proceeding its determination could not then proceed in this court. Under the most liberal construction of the new act I hold that section 2538 of the Code of Civil Procedure has no application to a jury trial in a proceeding brought for the construction of a will. Such issues could not be tried by jury in this court. Any judgment which the surrogate, without a jury, might render on the validity of a devise would not be binding in the proper forums unless a jury trial

Surrogate's Court, New York County, December, 1914. [Vol. 88.

were expressly waived. Thus it is apparent that the surrogate ought not to pass, in a proceeding to obtain a construction of a will, upon the validity of any disposition of real property where a trial by jury is a matter of right and not waived. This, I think, is the first proper limitation upon the exercise by the surrogate of the new jurisdiction to construe wills and devises. For the present I am determined that I will not pass on the validity of any devise where there is a remedy in the devisee in the nature of an ejectment, at least before I am advised by superior authority that I may so do. I will not indulge in innocuous and worthless judgments knowingly.

Formerly courts of equity or general courts vested with equitable as well as common law powers would not pass upon the validity of a will disposing of real property unless there was a trust (Dill v. Wisner, 88 N. Y. 153), nor could it pass upon the validity of a power of sale given to executors by a will. Mellen v. Mellen, 139 N. Y. 210. The powers of the surrogate under the new act cannot be greater or altogether different from those formerly vested in the courts of equity and law combined. There must be some reasonable limitation or restriction upon the powers of the surrogate under the new act in passing on the rights of parties who take under wills. A very plain limitation to my mind is this: In no case where any party taking under the will has a right to try his title by jury can this court, without his consent, determine the validity of the testamentary disposition. This operates as a general limitation upon the surrogates' jurisdiction to determine the validity, construction or effect of any such disposition. In no such case can a special guardian appointed for such a proceeding waive the infant's right to trial by jury in another court.

It is doubtless the fact that since section 1866 of the

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