In re the Estate of Harden

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.”

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.

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

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

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 committed 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

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

The surrogate ought not in any event to entertain such proceedings as this merely for the purpose of removing doubts of the parties, provided the means of forming a correct legal judgment are patent on the face of the will.

In other words, there must be a substantial doubt and a necessity shown for relief sought, or a case of some kind, made on some principle, before recourse to the surrogate for his determination under the new law will lie. Mellen v. Mellen, 139 N. Y. 219 ; McKinlay v. Van Dusen, 76 App. Div. 200 , 205; Monypeny v. Monypeny, 131 id. 269 . This is not and cannot be in the nature of things a court of consultation. Executors having slight doubt cannot be allowed to come here under the new act and transfer all their burdens to the surrogate, especially, I might remark (I hope with due gravity), while executors under the modern law are entitled to retain statutory commissions for the performance of the duties of their office.

One of the rules which I conceive the surrogate should lay down in proceedings of this character is that where the construction may, without any substantial prejudice to the parties meanwhile, be accorded at a later stage, in the regular way, on the settlement of the final accountings of the testamentary trustees or the personal representatives, that then such construction ought to be postponed by the surrogate until the final accounting or the settlement of the decree to be made thereon. Otherwise a party aggrieved by the construction accorded might be forced to take separate appeals, one from "the decree affording construction and another from a decree of distribution on the final accounting. Such a course of procedure would be both vexatious and intolerable.

In this matter the petition, on its face, discloses the inherent defects I have just noticed. The construction sought is expressly declared to be for the very purpose of the final accounting in futuro. Now, all such matters I can better determine on such accounting and in the regular way. No valid reason is alleged in the petition for a resort to this court at this time, and, therefore, it cannot be allowed. The argument ab ineonvenienti is not sufficient to change this conclusion.

These considerations bring me to another point of

This incident is only important as disclosing what a peculiar kind of judicial proceeding this at bar really is. But for the determination of this matter .it will, in any event, not be necessary for me to go beyond the facts stated in- the petition itself.

In so far as the new legislation sanctions the application of testamentary trustees to this court for its direction and assistance by way of construction, I am not disposed to deny that a proper case may be made for the application. I am convinced it will require grave consideration and much technical accuracy and labor if it is to be finally sustained in the court of review. In every such case some necessity for the

An objection that there is no ground for the interposition of the surrogate may be taken on the return of the citation or on the hearing. The issuance of the citation is only process or inceptive and it does not dispose of the merits of the application as urged by petitioner’s counsel.

When the petition will lie for construction it must be determined by the facts of each case. A case where construction might be formerly sought in the Supreme Court of the state, possessed after 1846 of equity jurisdiction, was to my mind disclosed in the opinion in Wager v. Wager, 89 N. Y. 161 . But the conditions disclosed in that case are absent here. In the petition in this matter no relief is presently asked for, except construction to enable a distribution which can only take place hereafter in a separate proceeding. The new act does not contemplate that such a proceeding as this shall be a discovery proceeding to enable further proceedings in this court.

At this time the questions of distribution put to the surrogate in this proceeding are purely moot or abstract questions, in so far as any present necessity is disclosed. Courts never decide future or contingent questions, or unless they lead to immediate results or relief to the parties. Pom. Eq. Juris., § 1157, and cases there cited.

Whether a proceeding by executors to obtain the direction of the surrogate in regard to the proper discharge of their duties may be taken in a proceeding of this character under the new legislation I doubt. Clay v. Gurley, 62 Ala. 14 ; Ferrand v. Howard, 3 Ired. Eq. 381 . If it be otherwise, then the legislation does not take into consideration the practical difficulties in this jurisdiction. It must be apparent to others as

When the hearing on the petition and answers in this matter came on before me, as the stenographer’s minutes disclose, the special guardians and counsel for Mrs. Harden and Mrs. Fowler very properly stated that in their opinion the matter was not ripe foi adjudication and that the determination of the surrogate should be postponed until the settlement of the accounts of the executors and trustees and the decree of distribution. But with the exception of one guardian, this position has been since abandoned in the written briefs submitted to me, and all the parties before me, except one, ask for the judgment prayed by the petition. I am not convinced that this fact alters the legal situation. Much as I desire to be of use to those who see fit to resort to this court, I must proceed on principle and not meo motu or by my own volition. Adjective or administrative law is always the fruit of past experience which can with advantage in no case be disregarded, even when the ostensible motive of the act is reformation or expedition of procedure. ■

In conclusion let me add that it seems to me tlmt on the face of the petition no valid ground is stated for a resort' to the surrogate at this time, and that the relief expressly sought is appropriate for the proceeding to settle the accounts of the executors and trustees, and that at this time the issues should not be prejudged. While this is true, I cannot but regret

Petition dismissed.