#### S. Jeanie Davis, Plaintiff, *v.*Albert W. Tremain, as Executor and Trustee Under the Last Will and Testament of Eleanor H. Higgins, Deceased, Hamilton College, of Clinton, N. Y., and Others, Defendants.

(Supreme Court, Oneida Trial Term,

September, 1910.)

Wills — Interpretation and construction: Designations and descriptions of property, funds, etc.— Rules and implications — Description of property — Manner of subdivision: Repugnant or inconsistent provisions relating to estates and interests — As to quantum or duration of estate — Balance of estate after devise of whatever should remain of real estate.

A gift by a testatrix of all her “ household furniture and belongings not hereinbefore disposed of and any other balance of my estate not otherwise disposed of *”*will not be construed to include any of lier real property where, in a previous clause of her will, she has disposed of “ whatever shall remain of my real estate ”.

Where the testatrix devised her home, “consisting of the lot with house and barn situated thereon,” and at the time of her death *121owned tbe adjoining property on which stood another building, but no line of division between the two properties was designated by monuments or otherwise, she will be regarded as having intended that a sufficient strip of land adjoining the other building for tbe maintenance of overhanging eaves and window blinds, which appears as a fact to be a strip six feet in width, as well as a sufficient strip of land for a driveway from the barn, should go with the latter dwelling, and that it should not be left with a mere easement therein.

Action to obtain construction of will.

'Scripture & Scripture, for plaintiff.

Ward J. Cagwin, for defendant Tremain.

Frederick M. Calder, for defendant Hamilton College.

Devendorf, J.

The plaintiff asks for a construction of certain clauses of the last will and testament of Eleanor H. Higgins, deceased. The part submitted for such construction is contained in clauses twelfth, thirteenth and fourteenth, and is as follows:

> “ *Twelfth.*I give and devise the use and income of all the rest, residue and remainder of my real estate, to my sister S. Jeanie Davis during the term of her natural life, and at her death, to my sister. Anna W. Davis during the term of her natural life. If at any time during said terms my said executor shall deem it for the best interests of my estate, by reason of unproductiveness or likely depreciation in value, or any other cause, in the exercise of his sound discretion, I hereby authorize and direct him to sell and convey said real estate or any part thereof, at the best prices obtainable, and the monies derived therefrom to invest in some good paying investment, and to pay the income therefrom to my said sisters as though it was the income from the real estate as above provided.”

> “ *Thirteenth.*At the death of both my said sisters S'. *122Jeanie Davis and Anna W. Davis, whatever shall remain of my said real estate I direct my said executor to sell and convey and, out of the proceeds thereof:

> “(a) I give and bequeath to the Young Men’s Christian Association of Rome, H. Y., the sum of One thousand ($1000.000 dollars.

> “(b) I give and bequeath to the Rome City Hospital of Rome, H. Y., the sum of One thousand ($1000.00) dollars.

> “(c) I give and bequeath to the Woman’s Missionary Society of the First Presbyterian Church of Rome, H. Y., the sum of Five hundred ($500.00) dollars.

> “(d) The remainder thereof, if any there be, I give and bequeath to Hamilton College of Clinton, H. Y.

> “ *Fourteenth.*All of my household furniture and belongings not hereinbefore disposed of and any other balance of my estate not otherwise disposed of, I give, bequeath and devise to my sister S. Jeanie Davis, if living at the time of my decease; if dead, then to my sister Anna W. Davis.”

Plaintiff alleges that the above provisions should be so construed as to give her the absolute title to certain real estate situate in Atlantic City, H. J.; it being her claim that the fourteenth clause, as a residuary provision, devises to her sucli property in fee.

I am unable to accord with her in that regard. The testatrix explicitly devises, by the tenth clause of her will, certain real estate to the plaintiff and, again, by the eleventh clause, devises a farm to another sister, and then, by the twelfth, gives and devises the use and income of all the rest, residue and remainder of her real estate to the plaintiff during the term of her natural life. The thirteenth clause disposes of the property at the termination of the life estate. It is true she did not specifically mention the New Jersey real estate, but it is embraced in the language “All the rest, residue and remainder of my real estate;” and the language of clause fourteen simply refers to her household furniture and belongings, and any other balance of her personal estate not otherwise disposed of. It does'not refer to the real estate or in any way control the disposition of the lands in New Jersey.

*123I have come to *the*conclusion, therefore, *that the*plaintiff must necessarily fail in obtaining the construction asked on her part.

There is still’ another question, more difficult’ of solution, which is raised herein by the defendants in their respective answers; that is, as to the construction and effect to be placed upon the tenth clause of the will, which is as follows: “I give and devise my home, situate at 104 East Liberty Street, in the City of Rome, N. Y., consisting of the lot with house and barn situated thereon, to my sister S. Jeanie Davis, if living at the time of my death. If not, then to my sister Anna W. Davis.” What property did the testatrix intend to devise to the plaintiff thereby ? She owned other property adjoining, which certainly cannot be considered as part of the home; and, without agreement by the parties, the court must at some time and in some manner give effect and definite bounds to the language used. There are no monuments fixing the division line between the premises known as 104 and 106 East .Liberty street.

I am aware of the long line of decisions uniformly holding that where there is a remedy at law no action lies under section 1&66 of the Code of Civil Procedure to construe testamentary provisions. Jones v. Richards, 24 Misc. Rep. 626; Whitney v. Whitney, 63 Hun, 60; McKinlay v. Van Dusen, 16 App. Div. 200; Mellen v. Mellen, 139 N. Y. 219.

This case, however, I think, differs. from them in two respects: Eirst, the plaintiff comes into a court of equity and asks for construction of the will in question and the defendants, by their answers, join in asking that another provision of the will be construed; and, second, a trustee, designated by the testatrix in such will, is interested to know what property is placed in his hands and of which he is given a power of sale.

I think it well settled that section 1866 of the Code does not authorize the maintenance of an action in equity where' the sole purpose is to test the legal title to real property and the action of ejectment would afford a full and adequate remedy. Whitney v. Whitney, *supra.*

An heir a.t law or devisee who claims a mere legal estate *124in real property, where there is no trust, cannot come into a court of equity for the sole purpose of obtaining a judicial construction of the provisions of the will and thus obtain the title to real estate; the decision of such legal questions belongs exclusively to courts of law., unless a court of equity has obtained jurisdiction of the case for some'other purpose. But, if the court has obtained jurisdiction for the purpose of establishing the equitable right of the next of kin to the personal estate, that carries with it jurisdiction to adjust the whole controversy. Wager v. Wager, 89 N. Y. 161; Bowers v. Smith, 10 Paige, 200.

The Supreme Court has jurisdiction to entertain an action, brought by an executor, trustee or *cesiui qua bm&t,*to construe a doubtful or disputed trust clause in a will. Anderson v. Anderson, 112 N. *Y.*104; Tonnele v. Wetmore, 195 id. 436; Read v. Williams, 125 id. 560.

In this case the trustee is given discretionary power of sale of the real estate during the life of the plaintiff and is imperatively directed to sell upon the death of the plain-tiff and her sister. The controversy here, and which necessarily arises from the will, is as to what part of the real estate the plaintiff takes under the absolute devise to her and what .part the trustee takes as such. How is the property divided, by the language of the will, between them? This, as above suggested, necessitates a decision by the court fixing the rights and' powers of the trustee under the provisions of the will.

Por the two reasons above given, namely, that this court, upon plaintiff’s initiative, obtains jurisdiction to dispose of the whole controversy and, secondly, the rights and title of the trustees are involved, I have come to the conclusion that there is power in this court, in this action, to determine the meaning and scope of the language of the tenth clause above quoted, and determine herein the rights of the respective -parties thereunder.

As stated, there is no monument or line between the said dwellings 104 and 106; but the testatrix occupied the premises more or less, for the purpose of a lawn, well toward the cellar wall, of the dwelling Ho. 106. It is urged by *125the plaintiff that, if there is to he a construction of this part of the will, the plaintiff should be awarded title to the land up to the cellar wall, but that there should be an easement for the overhanging cornice and the window blinds upon the.house on those premises.

I think the testatrix did not create or intend to create an easement only in the land immediately adjoining for the use, management and maintenance of the dwelling 106. She necessarily used a certain part of such land as belonging thereto; and it appears as a fact in the case that, for such maintenance and overhanging eaves and window blinds, there should be a piece of .land at least six feet wide appurtenant- to the building.

She did not intend to injure the value of that property by willing away the necessary adjacent land to keep the premises in repair and for the use of the overhanging parts of the building. Neither did she intend to limit the use of such land to an easement. She had used what was necessary with the house (No. 106) and the fee of such narrow strip so used should go with it. An uncertainty would injure the value óf both properties.

I have, therefore, construed the will in question as devising, with the house 106 East Liberty street, a strip of land six feet in width, extending southerly from such street-, the east line of such strip being the westerly side of the cellar wall; such line being extended on the northerly to the street and on the southerly to a point six feet southerly of the southwest corner of such wall and the west line of such strip being parallel thereto its entire length. The wire fence extending from the southeast comer of said six-foot-strip should be the line between the two premises to a point six feet northerly of. the northeast corner of the barn; thence a six-foot strip of land on east and south sides of the barn should pass with it as appurtenant thereto, for the overhanging eaves, repairs and maintenance. Also, a driveway, of a reasonable and necessary width, from the barn to Stone alley, so-called, should pass with the barn; such width should be fixed at twelve feet. The board fence as *126now located on the southerly of said premises 104 is the southerly line thereof.

Findings and conclusions may be prepared accordingly. A- taxable bill of costs awarded to the defendant Tremain, as trustee, and to the defendant Hamilton College, to he paid from the estate.

Judgment accordingly.