In re the Probate of the Will of Walker

banks in New York city, Brooklyn and elsewhere, aggregating over $65,000, and which are specially referred to in different provisions of his will.

Second. Whether he was indebted, at the time of his death, to his daughter, Mrs. Catharine E. Bond, in the sum of $7,557, which represented the amount which he had at various periods of his life deposited in certain savings banks in his name, as trustee for his daughter, and which he had subsequently drawn out and converted to his own use.

Third. Whether the legacies in the will, to the amount of $24.800, given to two charitable and religious societies, viz.: The Home for Old Men and Aged Couples connected with the Protestant Episcopal Church in the city of New York, and the Protestant Episcopal Church Missionary Society for Seamen in the same city, must not abate to the extent to which they may be in excess of one-half of the estate left by him after the payment of all just debts and the necessary expenses of executing the provisions of his will.

Upon each of these questions issues of fact were raised and much extrinsic evidence given, and the surrogate finally decreed that the moneys so deposited did not belong to the testator when he died, and formed no part of his estate, but belonged absolutely to the several persons designated as ■ the beneficiaries of the deposit in each case, and that the bank, or pass books, belonged to such persons, and the executors, who might qualify, were directed to deliver such books to them; and with respect to one deposit of $2,104, which stood to the individual credit of the testator, it was decreed that the moneys belonged to a grandson, and was no part of his estate, and that the grandson was entitled to the possession of the bank, or pass book, representing such deposit, and to the principal and interest thereof. It was further decreed that the claim made by Mrs. Bond to the moneys deposited by the testator as trustee for her and subsequently withdrawn should be disallowed, and that the total amount of the estate left by the testator was $26,464; and that the charitable and religious societies named could take only one-half of this sum after making the proper deductions for debts and expenses.

This decree purports to have been made pursuant to the authority conferred upon the surrogate by the provisions of §§ 2624-5-6 of the Code of Civil Procedure, which provides, in substance, that if a party to a proceeding for the probate of a will expressly puts in issue before the surrogate the validity, construction or effect of any disposition of personal property contained therein, the surrogate must determine the question upon rendering a decree, unless probate of the will is refused, and enter a decree accordingly, and, if required by either party, he must enter in the minutes the grounds of his decision, and the decree is conclusive only upon the petitioner and each party who was duly cited or appeared and every person claiming from, through or under either of them.

In their application to surrogates’ courts generally, these pro

visions of the Gode are new. They are, in substance, found in § 11 of chapter 359 of the Laws of 1870, entitled “An act in relation to proceedings in the surrogate’s court of the county of New York and to the powers and jurisdiction of the surrogate thereof; ” but that act conferred much broader powers, for it declared that the surrogate should have the same power and jurisdiction as were then vested in and exercised by the supreme court to pass upon and determine the true construction, validity or legal effect of any disposition of real or personal property contained in any will offered for probate before him in the proceeding for such probate. When the second part of the Code was adopted the local act was repealed, and the authority extended in its abridged form to all the surrogates’ courts of the state.

Whatever may have been the true interpretation of the act of 1870, we do not think that under the provisions of the Code referred to the surrogate had jurisdiction to hear and determine any of the questions submitted to him in the manner in which they are presented by the record under review. With respect to the legacies to the charitable and religious societies, no construction of the will and no decision as to their validity or legal effect was necessary in order to determine the exact.rights of the legatees. The language of the bequest is clear and unambiguous, and no question could arise in regard to the quantum of the estate to which they are entitled under the will, were it not for the statute which limits the amount which such societies may take, where the testator has children surviving him, to one-half of his estate after ■the payment of his debts. Laws 1860, chap. 360.

The law prescribes the maximum limit of the aggregate of such legacies, and the will is to be read as if the statutory restriction was a part of it. If it had, in terms, provided that these institutions should have one-half of his estate after the payment of his debts, but not exceeding $24,800 in all, it would have merely stated in another form the effect of the bequests under consideration. When the surrogate decreed that these legatees were not entitled to more than one-half of the estate after the payment of the debts, and that, as to the other half, he died intestate, it was a simple statement of the legal effect of the will and the statute when read together. There was nothing uncertain or indefinite about these legacies, save the amount which the legatees would ■eventually take, and this could not be ascertained except in the ■orderly administration of the affairs of the estate. There is scarcely a will probated in which it might not be said that the same uncertainty exists with reference to some of its provisions. A legatee to-, whom the whole or a designated portion of an estate is given, after the payment of debts and specific or general legacies, would have the same grounds for appearing upon the probate of the will and asking the surrogate to ascertain and determine the extent of his legacy. The surrogate cannot then make ■an inventory of the estate, or adjudicate upon its liabilities. Such issues must be postponed until the executor or other official representative of the estate lhas been appointed, upon whom the law

has cast the responsibility of action in regard to such matters and prescribed the method of his procedure.

That the surrogate could not pass upon the validity of the claim of Mrs. Bond is too plain for discussion. The entire scheme of the statute creating and defining the powers of that officer has carefully excluded from him the cognizance of disputed claims against the estates of deceased persons; unless it is a debt due to an executor or administrator, or one provable in proceedings for the sale of real estate.

Jurisdiction in this case is asserted, because it is deemed to be necessary to determine the net value of the estate for the purpose of ascertaining what portion of it will pass to the charitable and religious societies under the will. But as the principal question to which this inquiry relates cannot lawfully be determined in this proceeding, every subject incidentally involved in it is necessarily excluded.

The most important branch of this controversy relates to the title of the testator to the savings banks deposits. These were claimed by the respondents not by virtue of the will, or of any provision in it, but in hostility to it. The trial of such an adverse claim of title was not, we think, contemplated by the legislature when it clothed the surrogate with the powers enumerated in § 2624. The validity of a disposition of personal property by will, which can be determined in a proceeding for probate, necessarily assumes that the property belonged to the testator, but the form or manner in which he has undertaken to dispose of it is made the subject of contest. Questions of title to property have always been reserved for the common law courts, or statutory tribunals invested to some extent with their powers, where the right to a jury trial is guaranteed, except in cases of equitable cognizance. Nor can such questions be properly or finally adjudicated without the presence of the official representative of the estate, in the person of the executor or administrator with the will annexed, as a party to the proceeding, who has not yet been appointed, although this decree assumes to direct and control his conduct in advance of his appointment, and requires him, when he has qualified. to deliver to the claimants the evidences of title to the disputed property which may be in his possession. This difficulty in the way of a complete determination of the questions litigated is of itself sufficient to support the conclusion that it was the intent of, the law to confine the investigations in these cases to questions arising between the parties to the proceeding, as between different legatees, or between next of kin and the legatees, growing out of the terms of the will, and not involving the title of the estate to the property to which they refer. In such contests the executor, if appointed, would ordinarily be an indifferent spectator, and hence there would be no impropriety in determining them in his absence. The estate would not be augmented nor depleted whatever the event might be. We cannot recall any statutory provision which authorizes the surrogate in any proceeding to pass upon the question of title to property as between a claimant and a representative of the testator’s estate. Jurisdic

tian in all such cases seems to have been scrupulously and intentionally withheld. If the executor has reason to believe that any assets belonging to the estate are detained by any person in whose possession they may be, he may make application to the surrogate for an order requiring such person to show cause why be should not deliver the property to the executor; but if, upon the-return of the order, the title or the right of possession of the executor to the property is disputed, the surrogate must dismiss the proceeding, and the executor is remitted to his legal remedies in some other forum.

It is contended that the construction of the provisions of the will in this case is involved, because the testator has described the legacies given to the respondents as sums of money which he has deposited from time to time as trustee for them, respectively, in certain designated savings banks; but this language is merely descriptive-of the property attempted to be disposed of, and would not require-special consideration, were it not for the claim of title made by the respondents, independently of the will. It may be an important item of evidence, which would have great weight in shaping the conclusions of a trial court, but it affords no ground for judicial construction upon the probate of the will.

The objections to this decree are jurisdictional. The consent of the parties is not sufficient to avoid their fatal effect. Wherever there is a want of authority to hear and determine the subject matter of the controversy, an adjudication upon the merits is a nullity and does not estop even an assenting party. The Chemung Canal Bank v. Judson, 8 N. Y., 254 .

The present case illustrates the futility of the attempt to obtain jurisdiction of the subject matter by the voluntary submission of the parties. The defeated party is not likely to acquiesce in the-judgment, and he may raise the question for the first time on appeal, as one of the parties to this record has done. She had the-legal right to adopt such a course, and it would have been the-duty of the court to have directed a reversal of the decree for want of jurisdiction, even if the point had not been distinctly-raised.

The order of the general term and the decree of the surrogate, except that part which admits the will to probate, must be reversed, without costs to either party.

All concur, except Andrews, J., absent