#### Margaret E. Jones, Plaintiff, *v.*Morris P. Richards et al., Defendants.

(Supreme Court, Oneida Special Term,

September, 1898.)

Equity — Where there is no trust, or an invalid one,, an heir cannot sue to invalidate a will — The rule, that the heir must sue at law, has not been changed by Code of Civil Procedure, § 1866.

An heir-at-law cannot maintain an equitable action, nominally to construe the will of her father, but whose real purpose is to invalidate a certain disposition of real estate contained in the will, to the end that she may share in the devised real estate in the same manner as if it had not been disposed of.

*626. The fact that the will contains an alleged invalid trust, which the' plaintiff attacks, to which she is not a party, and of which she is not a beneficiary, does not give equity jurisdiction upon the theory that the action involves a trust.

The rule that, in the absence of a trust, the remedy of the heir is at law only, has not been changed by section 1866 pf the Code' of Civil Procedure, declaring that the validity, construction or effect of a. testamentary disposition of real property, which would descend to ; the heir of the intestate, may be determined in an action brought for that purpose, in the same manner as the validity of a deed.

This action is brought under section 1866, Code, ostensibly to obtain a construction of, but really to have declared invalid certain provisions in the will of one William P. Richards.

Plaintiff was one of the children of said Richards who died, leaving in addition a wife and other children, the survivors of whom are parties to this action. He left a will by which he attempted to dispose of his property in three portions. One portion, consisting of a farm, he devised to plaintiff and others of his children with power of sale to his executors. This farm has been sold and the proceeds distributed to and received by the devisees entitled thereto, including plaintiff. "The remainder of his real estate he devised to his wife and another daughter than plaintiff “ for and during their lives, and to the survivor of them for and during her life,” charged with the support of an imbecile son, and said daughter is now in possession thereof. He further provided that upon the death of the survivor of said two, his executors, or the survivor of them, should sell said real estate, renting and keeping in repair until such sale, and should divide the proceeds thereof amongst certain heirs-at-law, except $3,000 which was to be kept in trust for the support of said imbecile son, if then living, until his death. His pergonal property, after some inconsequential bequests, was given outright and absolutely to his wife and a daughter other than plaintiff. Hpon the trial, plaintiff’s attack upon the will was limited to those clauses disposing of the second and residuary portion of the testator’s real estate as above outlined. As before stated, the disposition of the first portion had been completed before this action was brought and no question whatever was or well could' be raised as to the validity or plainness of the provisions relating to the personal estate. It was substantially conceded by defendants that some, at least, of the provisions grafted on to the disposition of the testator’s residuary real estate after the life estates therein as above set forth *627were invalid. It was claimed by plaintiff that such provisions were so interwoven in the general disposition of this portion of testator’s •estate that the entire clauses relating to that portion must be held invalid and fail.

Sayles, Searle *&*Sayles, for plaintiff.

Jones *&*Townsend, for defendants.

Hiscock, J.

This action being brought under section 1866, ■Code, the first defense urged is that plaintiff is not entitled to maintain it even though otherwise right in her contentions, and this defense seems to me to' be well founded.

Plaintiff bases her right to recover upon the claims that she is a daughter and heir-at-law of the testator; that the clauses of his will in question are invalid; that there has, therefore, been no disposition of this portion of his real estate, and that as such heir-at-law she is entitled to her share thereof as against the defendant now in possession thereof. If she is right in her claims she has a perfect remedy at law, and has no need to resort to an equitable action.

It seems to have been very clearly settled that prior to the enactment of the section of the Code referred to she would have had no right to bring this action, there being no trust to give a court of equity jurisdiction. Weed v. Weed, 94 N. Y. 243; Wager v. Wager, 89 id. 161.

It may be urged that there are provisions in the criticised clauses 3 and 4 of the will which attempt to create a trust after the expiration of the life estates and that, therefore, the necessary trust is present to give this court jurisdiction.

Plaintiff, however, is in no way a party to or beneficiary under those clauses or interested in a construction or execution of these trust provisions. She does not want them enforced. Her only possible interest is in attacking and having them declared invalid, and the suit of such a person in such an attitude does not give jurisdiction upon the theory that a trust is involved. Bailey v. Briggs, 56 N. Y. 407; Chipman v. Montgomery, 63 id. 221, 231; Anderson v. Anderson, 112 id. 110.

The question remains then whether section 1866 has changed the rule before existing and given the court jurisdiction in a case such as this where an heir-at-law is seeking to have her right to real estate confirmed through an adjudication that provisions in a will *628purporting to dispose of it are invalid. This inquiry is not open to original determination hy this court, but simply involves the attempt to gather the law- .from the conflicting decisions of the appellate courts.

*It*is conceded that there are decisions and *dicta*in favor of plaintiff’s position. The latest decision of an appellate court, however, which has been called to my attention is that expressed in Whitney v. Whitney, 63 Hun, 59, and which after careful and extended consideration holds the former- rule to be unchanged by the statutory enactment in question. This case is also later than various *dicta*in the Court of Appeals referred to by plaintiff for support. The rule laid down therein seems also in -the latter case of Simmons v. Burrell, 8 Misc. Rep. 388; 59 N. Y., St. Repr. 554, to be assumed to be the correct one where nó trust is involved to change it.

The conclusion reached upon this defense renders it unnecessary to consider the other ones whether plaintiff is estopped from bringing’ the action o-r whether' certain provisions in clauses 3 and 4 if invalid, as claimed; may not be cut off so as to leave the balance effective.

Findings and judgment in accordance herewith and with costs to defendants may be prepared and settled upon two days’ notice if not agreed upon.

Judgment accordingly.