The sun. [volume] (New York [N.Y.]) 1833-1916, 1877-06-24

Which ~ submitted Tor probate to the Surrogate,
Is most appropriately dcvolvcd upon such Sur
rogatc. ana that its exercise would subservet the
convenience OF the parties litigant, and secure
turc.
BY section II OF chapter $50 of the Laws Of
1870 II is provided that in any nrocecdinr he.
fore the Surrogate of the county 81 New York TO
prove the last viii and testament Cf any de-
ccased person as a,wi of real and porsens cs
titr. in case the validity Of any Of The DISPOSE
tons contained in such will is contested, or the
construction or legal effect called in question by
any OF the heirs or next of kin of the deceased.
Surrogate shall have the Same power and juris-
dictiOn rs ~ now vested in and exercised by the
supreme Court. To pass upon and Determine
the true CONSTRUCTION. validity, and legal effect
thcrcoir and the remainder OF the section pro-
WOES that the persons above named may APP
peal from his decision
The authority of this court to pass upon and
determine the true construction. validity, and
legal elect of the dispositions contained in the
VIII. which are called in question by the heirs
ny of Chapman agt Montgomery above cited
which holds in substance that an action brought
nv the heirs or next of kin in hostility TO a will
10 OBTAIN the judicial construction of "A will but
in tat brought for the purpose of ovcrthrowing
the snmr. and to establish the rights of the
paniiif To n share of the estate, IA IN case Of
lhtrsticy. could not lbs sustained in n court Of
equity but must assert their right directly by a
cring the opinion Of the court at page $50 SAYS
r Ine rns j. that e. put court Of equity in notion
r ,h ,, ",' i ,vsl,' !" u', n, .
court a., dsunsihshcd from court ri law Although the
are abolished. the Distinguishing features Of the two
mirkcd and r-iiy obscr,oG Il. they ever were and
h Is .s.cnal To- ,hc administration 81 justice n an or
fishts o ,uiturs Hence who claims real property
recovcry aud he Mo had right to Tcrsonatv or
To aN dcht or duty which the subject of AL action AT
common law must ~ sort to the nyprOpral, remedy Icy
ages Tor the infringement ofhis right
And the same learned Judge quotes the lam
guagc of Mr. Justice folgcr. in Baylcy against
briggs. 80 y. u. 4OI. with appreciation. us fol-
lows:
hi- when the court ismovcd in bchalfof executor.
trustee. or gesm' que trust to insure correct admins
t no I c 1Gn IT, nsh,s sr u, hin ,.i
trusts Cluns several authorizes
AN OBSCURE STATUTE.
II must be admitted that the statute Of 1870
under consideration il IN many respects OBJ
scure in Its provisions and incomplete and the
necessity Of lis construction is quite as urgent
H. that Ofth Will in question. But while II re-
/ of this Court To seek to enforce its provisions
according 10 the inten of the Leg stature which
/ cna ted II. and this case seems To me To- pre-
sent lifting opportunity to secure its autnorita-
! tive construction; and while The manifold duties
/ deyolving upon the incumbent of this office for
! bid that he should strive unrrasonHbly To cN-
! tend the jurisdiction OF this court y.t II would
b" an Official drrelicion Tor him 10 rciusr 10 "N-
ercse the jurisdiction 10y law conferred upon
/ him.
The learned counsel who disputes the au-
! thoriiy of this Court To pnss upon thn validity.
| construction. and legal effect Of the disposition
contained in the wlllein question. intrrprcts tho
eleventh section If the Act of 1870. ~ though II
read. The Surrogate shall h.Nu tie sumo
| power and Jurisdi5tio n are now vested in and
/ exercised by the supreme Court rs "A court 81
| equity IN the same ,'A-,s and acquired III the
| same manner while IL seems To me the use of
the words same power and jurisdiction ~ are
now vested in aud exercised hy the supreme
/ Court" WAS intended to express the amplitude
oi the power conferred On this Court rather
than ~ a limitation. and To refer To the power
that il or might be exercised 10y that Court, IN
any ca-r whore II obtained Juri~llg ton, ia other
words. that i was the intention OF ne l.rslsln-
ture Ia passing the act under consideration. IN
cir-e Mlil should Dee PR scented lVr probate ana
the validity. rnu-tru 'tluu ur legal ciior Of any
of il dispositions should h. raised hy either 81
the p"t- !n~ Interested named IN thenct the sur
roIHte should takr jurisdiction. and cAcrc'~,
tic Wu,horbl II determining the lcral ciir'
/ and true construction of any It's provisions AZ
/ absolutely lis the supreme Court might do
when 1t obtain Il JurisdI uun oi tAe salnc par
ties aud tho same matter. whether a. a cOur
II .m- t. me- To- he a fair and reasonable con
structlOno i the -, ton ia question that II Wa,
intended to confer upon The Surrogate 81 Thu
county IN" power 10 Iass upon IT," validity am
legal effect ui any "f the dispositions OF Il VII
PROV .uu.e,l hS niu on the cont II, or called II
question ly either an hrir. nest 81 KIN. lrE'tce
; or drN i-''. and that it, object was t. avoid IN
alsuIdity If u Will being admitted Ia pr"bat
. when il Was apparent that liz provisions wgui'
be- adiud-cd void on a suit brought for thu
WHAT WOULD BE UNJUST.
II any acton should he brought for the pur
pose 81 '-tahlshing a lost ~ DESTROYED WIZ
Z in th. -nrne suit have the power and Huthorit
| t. construr any of lis provisions or pass upu
their legal validity, or suppo- an ton ~honl
/ h. brought by IN" heirs at law TOR the r"'oNcr
OF real estate which had been DEVISED a. "a cor
| poration hy law not entitled To- take, ana by Wa
I I Of defence. a. Will which had never hr'n pr
| / latrd should he given IN "vidrn'" on due proc
l of It's execution. according To- law. rs d"len'
% showing that IN" defendant was the owner b
virtue Oi tAr devise. M"ulh thnf" ID" any u"ui
tdat the same court rnuld d'torinih" ~" qun-
ton A. to thr butterfly Of thr devise e. INK "
! would the plaintiff ir turned out OF Court an
l'lt to hl- affirmative Il ton 20 t'~lNf-h III
: inynliditv of tle Il 'yi~et obviously -u 10 % pr,
ce-dln would lee unjust. ">pe 'inliN as 1t Is mel
in Chapman ugf. VI Montgomery. above rli'd th3
thu supreme Court IA equity W"ud n. ttk
. com .lute of such "A case nj the suit Of M" Incl
> AT law: and II So. then clearly the Suprem" Coui
would Ice found incapable OF protecting IN
q rights II parties. or the redress or prey M
e oi their WruuL- and the real owner coniI"lc
4 To- await ia" action of the executors. who. iroI
p caJrie or Otherwise ,nshi neglect To- move.
In Chapman agt. Montgomery. above clt''
y jurl-ditiDn was refused 10y the supreme tOul
), ~ court Of equity becaus' i was ales,
Il that there Va "a clear legal right which c"ul
: Doe enforced 10y law, ana ~ I'-"it WIS h,'''s
snry 10 a court - equity; but the statute {
$50. under consideration. docs not unit n
Surrogate. Of the county of New York 10 IN
!, power and jurisdiction vested IN and exercise
- l., the supreme Court n court Of equity. ~
all tho authority which That court may "N"rris
= whatever the nature OF the action, may be- in IN
!; and M / ol any OF tho dispositions of n WILL
conferred uuon the Surrogate Of this county /
y THE FOX WILL.
In The matter oil the pr bate OF inc all,Srl lN
will and testament Oi Charles Fox, d"reusel
. the lat Surrogat" Hut .hngs refused prQbn
- Of that will az a viii ol real estate, ter oW'
= tons Nird hy the heirs at law 10 the validity
' tln,lryi~e If the drrrdcnt therein Of hi re
, estate to the United States, the val dity q SUI
4 disposition having been contested, and III col
strtetion and legal ef'r called IN Question
pursuant 10 the eleventh section VI chaptcr j,
70 ~ tAr Laws Of 1870
An appeal was taken from that decision an
cnn~tru 'tiDn To- the General Term, whl'h VI
;, Affirmed ina 90 Barbour. ljN, from winch d"cisln
u co. The 4, moral Form nm appeal was taken ~ u
80 Court ol Appeals, ana IT. aillrmancc WAL !
!, found in 81 ! ork 40 pd-r 90
b. AnHpp,l wis further taken tp the Supr"n
200 Court 4 tn' luitDd Ntat'- from the decision
zee III. Court of Appeals. and ia" recent d'ci-o
4 affirming lhr lsnrnl /. llW mas h'rn proWu
$ gated hy that court. This il the only c.s".
% VIII IA am aware whore Tia" qu - inii 81 ""l
n sfru.ti1n. * o. made y the act oi $50. h- pee
w under rrN,rW; hut | am not Wiling To hrho'
80 that b thrrr had bHrn any DOUBT rther as L. Il
cln-i .futlonailfy of tho Hf m question, or 81 u
q authority of the late Surrogate 10 ronsitu" II
= Eos WIil. it would have escaped the All 'ntion
p tho learned counsel engaged in the canr ana Il
II several r1urts through which the ''ia passed.
.c II les conceded hy counsel that ~" Sulipgdt
r. on final account nE may, undnr the hulhorl
lr ol tn K i4scd Statutes. do all that - clhln'
N under the at of $50 that b" may do on pr
l. Late Hence ID cannot be Justly urged inui u