(91 Hun, 163.)

#### JOHNSON v. COCHRANE et al.

(Supreme Court, General Term, Second Department.

December 2, 1895.)

Receivers—To Preserve Property Pendente Lite.

The subject of an action to determine the validity of the probate of a will, brought under Code Civ. Proc. § 2653a, which provides that the issue “shall be confined to the question whether the writing produced is or is not the last will * * » of the testator,” is not the property devised by the will, but it is the validity of the will; and therefore the court cannot appoint a receiver to preserve such property pendente lite, as provided by Code Civ. Proc. § 713.

Appeal from special term, Kings county.

Action by Matilda G-. Johnson against William H. Cochrane and others to determine the validity of the probate of the will of Joseph H. Hamilton, deceased. A judgment was entered setting aside the probate, and defendants appealed. Plaintiff’s motion for the appointment of a receiver of the property of the testator pending the appeal from the judgment was granted, and defendants appeal.

Reversed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

Hugo Hirsh, for appellants.

M. L. Towns, for respondent.

BROWN, P. J.

This action was brought under chapter 591, Laws 1892, known as section 2658a of the Code of Civil Procedure. Judgment was entered in favor of the plaintiff in the clerk’s office of Kings county on May 21, 1894. The purpose of the action was to determine the validity of the last will and testament of Joseph H. Hamilton. The statute provides that “the issue of the pleadings in such actions shall be confined to the question whether the writing produced is or is not the last will * * * of the testator.” The judgment entered followed the language of the statute, and decided that the writing produced and admitted to probate by the surrogate was not the last will and testament of said Joseph H. Hamilton, and adjudged said probate and all proceedings had thereon to be invalid, null, and void.

The order appealed from cannot be sustained. Section 713 of the Code of Civil Procedure authorizes the appointment of a receiver after final judgment to preserve the property which is the subject of the action, during the pendency of an appeal. But the property of which the receiver was appointed, and which is described in the order as “No. 975 Bergen Street,” was not the subject of the action. The subject of the action was the validity of the will of Joseph H. Hamilton; and, while the judgment is conclusive as to the title of the real and personal property of the testator, it does not deal with or relate to the possession of any specific property of which the testator died seised; and the plaintiff could not, under any process that could be issued to enforce the judgment, obtain possession of the real estate in question. The effect of'the judgment upon the rights of the parties is to leave them in the same situation they *288would have occupied if the testator ■ had died intestate. The title to the property passes to the heirs at law, and possession must be recovered in the proper form of action for the recovery of the possession of real estate. Neither can the land be sold under the judgment in this action, and the proceeds distributed. The statute does not authorize such a judgment, and none has been given.

A court of equity undoubtedly possesses the power, independent of statute, to appoint a receiver to preserve property pendente lite; but such power can be exercised only in cases where the property is the direct subject of the action, and where the judgment to be granted will act upon the specific property. Probably, all cases that could arise where an appointment of a receiver by a court of equity would be proper are now included in the provisions of the Code. This is not a proper case for such an appointment, and the order must be reversed, with $10 costs and disbursements. All concur.