In re the Probate of the Will of Campbell

— On the 19th. January, 1891, Jane G. Campbell died, leaving as her sole heirs and next of kin Henrietta L. Butler and Elizabeth G. Foster, and leaving a last will and testament bearing date June 27, 1889. In and by this will provision was made for the payment of debts and a number of legacies, and then came the following items : “ Item: 1 give and bequeath to my niece, Henrietta L Butler, the sum of fifteen thousand dollars in trust nevertheless, said sum to be invested by her as she may think best, and the proceeds • thereof to be used for the support of a clergyman who shall hold divine services in the Lawrence Memorial chapel, at Oayuta lake, as often as may be convenient, and for such other purposes in keeping up the church services as she may think advisable; and at the death of the said Henrietta L. Butler the said sum of fifteen thousand dollars shall be paid to-the trustees of the parochial fund of 'the Protestant Episcopal church in the diocese of western New York, to be held by them, and the income therefrom us(ed for paying a clergyman who shall hold divine services in the Lawrence Memorial chapel, at Oayuta lake, as often as convenient, and to keep, up and in good repair the said Lawrence chapel and cemetery at Oayuta lake. Item: All the rest and residue of my property, both real and personal, of every description, I give, devise, and bequeath to my niece, Henrietta L. Butler, and constitute her my residuary legatee ; and should any legacy or devise herein lapse, or be held by any competent court to be invalid, then the part of my estate included" therein shall go to my said niece, Henrietta L. Butler, the residuary legatee and devisee of all of my property.” On the ‘23d"January, 1891, George H. Butler and Henrietta L. Butler, the executors named in the will, filed with the surrogate.of Schuyler county-their petition in the ordinary form for the proof of f-he will. A citation' was issued returnable February 24, 1891, which was served on Mrs. Foster February 15th, On the return day the executors and petitioners appeared in person, and Mrs. Foster in person and by counsel, and asked for time to answer. This was apparently granted,5 and the matter adjourned to March 12, 1891. On the 5th March, 1891, Mrs. Foster by her attorney filed an unverified answer, in which she stated that she appeared and contested the probate of the will, on four grounds: First, that the decedent was not a resident of Schuyler county, and the surrogate’s court of that county had no. jurisdiction; second, that the will was not properly executed; third, “ she alleges and charges that the clause or provision in said will giving to Henrietta L. Butler the sum of fifteen thousand thousand dollars in trust, and the subsequent direction for the disposition thereof, are illegal and void; ” fourth, that the will was procured by undue influence, and was void.

It is claimed by the appellate that the surrogate had no right to make any adjudication affecting her rights as residuary legatee; that there was no issue under the provisions of section 2624 of the Code that authorized the surrogate to construe the will. That section is as follows:

Mrs. Foster, upon whose motion the adjudication in question was made, had no interest under the will. If the trust for any reason was invalid, she was not affected, for it is expressly provided that if any legacy is invalid, it shall go to the residuary legatee. Uor did Mrs. Foster have any interest, so far as it appears, in sustaining the trust A case is therefore presented where the court, upon motion of a party having no interest in the matter, assumes to construe and adjudicate upon the terms of the will. We are of the opinion that section 2624, above cited, confers no authority for this, and that no issue within the meaning of that section was before the surrogate. Jones v. Hamersley, 4 Dem. Sur. 427. _

_ But it is said that the appellant consented that the surrogate might construe the will. Consent would not confer jurisdiction. In re Walker, 136 N. Y. 29 ; 48 St. Rep. 893 . There was certainly in the present case no express consent, and it should-not, I think, be inferred. The allegation of Mrs. Foster as to the trust was put forward as one of the grounds for contesting the probate, and when" the contest was in substance abandoned, and the will admitted to probate, it might well have been inferred bv the residuary legatee that all action or attempted action on the- part of Mrs. Foster would be ended, and that the surrogate would not be called on in her behalf to make any order about it. The proceeding was not treated as a trial of a question of fact under section 2545 of the Code. Ho decision was filed containing a separate statement of the facts found and the conclusions of law. If the case was not a trial under section 2545, it would not seem necessary for the appellant to file exceptions to the provisions of the decree in order to take advantage of its invalidity. If the subject- of the construction of the will was not properly before the surrogate, that defect was not waived

Upon the points on either side of the question as to the validity of the trust is discussed, but on each side one or more facts are assumed to exist that are quite material to the views of either counsel, and that do not appear in the record before us. We have no right to go outside of the record for the facts, and it is quite apparent that the question in controversy cannot be properly determined as the record here stands.

The decree so far as appealed from should, we think, be reversed, on the ground that the question as to the validity of the trust was not properly before the surrogate, and he had no authority to act upon it.

Decree of surrogate’s court so far as appealed from reversed, on the ground that the question as to the validity of the trust was not properly before the surrogate. Costs of appeal to the appellant, payable from the estate.

All concur.