p. 117In the Matter of the Construction of the Will of Philip Morganstern, Deceased.(Surrogate’s Court, Westchester County,Headnote
Subrogates — Construction op will.On probate, a surrogate has no power to construe a will which embraces real and personal property so blended as to prevent a construction as to one species without involving the other.
On the probate of the will in this matter, the special guardian of three minor children of the testator, born after the making of his; last will, asked for a construction of the will in so far as their interests were affected by that fact. There were also three children living at the date of the making of the will. The testator, after expressing his full confidence in the judgment and capacity of his wife for the management of property, of her love for their children, and that she would do the same full justice to them in the distribution of the estate as he would do, in view of these considerations, and his unbounded faith and trust in her and his love for her, he gave, devised and bequeathed to her,' after some small legacies, previously bequeathed, all the rest, residue and remainder of his estate, and he appointed her to' be the general guardian of the persons and estates of such of his children as at the time of his death might be infants. The property so devised and given to his wife consisted of real and personal estate of the value of about $70,000, the real estate being valued at about $15,000 and the personal at about $55,000.
J. N. Goldbacher, for executors; Farrington M. Thompson, special guardian.
The facts that only three children were in existence at the making of the will, and that three were born subsequently, are conceded. It is, therefore, claimed by the special guardian that, under the provisions of 2 Revised Statutes, 65,
p. 118sec. 49', as am'ended by the Laws of 1869, chap. 22, that the father died intestate as to these after-born children. It is well settled that a testamentary disposition to a class include® every person answering the description at the testator’s death. That is construed by the courts to be the testator’s intention, and they are thus deemed to be mentioned. So', wheré a class is referred - to, whether there is anything devised or bequeathed to them or not, all answering the description must be deemed to be mentioned. It is not considered necessary, however, to elaborate this point, as it will presently appear that this court has no jurisdiction to determine it in this case.
Section 2624 of the Code authorizes the surrogate, where a party expressly puts in issue the validity, construction or effect of any disposition of personal property contained in a will, to determine the question. He is not here required, to determine an issue as to any clause of the will disposing of personal property solely, which he might do, but of one embracing both real and personal, and so. inseparably connected and blended as to prevent a construction as to one species of property without involving the other. As the power to construe a will on the probate is one lately conferred upon the surrogate by statute, and is so far an enlargement of his jurisdiction, he cannot be permitted to go beyond it and attempt to exercise a larger power than was intended to be conferred by the legislature. Matter of Shrader, 63 Hun, 36 .
The request to construe is, therefore, refused.
Ordered accordingly.