Bellinger v. Taylor

Kellogg, J.: Before the amendment of section 2624 of the Code of Civil Procedure, in 1910 (Laws of 1910, chap. 584), the surrogate did not have the power to construe a will of real estate. (Matter of Trotter, 182 N. Y. 465.) The decree in question having been entered in 1898, it is unnecessary to consider the effect of that amendment. Neither need we question the power of the surrogate in certain cases to construe a will so far as is necessary for the purpose of distributing an estate before him, for the reason that he was not called upon to make a distribution of the estate, and no distribution could be made until the husband’s death. If it was desirable and proper to determine as to the validity or effect of the legacy to the mission society, which apparently depended upon whether the gift to it was of more than one-half of the value of the estate, that inquiry did not make it necessary to adjudge that the real estate was personal property, or whether after the husband’s death the various parties interested would take it as real or personal property. It is unnecessary to determino. whether there is or is not a conversion of the reál estate into personal property for the purposes of eventual distribution, or whether the legacies are liens or” not upon the real estate. The surrogate had no power to construe the will as stated in the decree, and his construction is not binding upon the parties hereto. We simply determine that the surrogate’s decree does not establish that the one-half interest in this property, originally belonging to the plaintiff’s wife, is now personal property, and, therefore, incapable of partition. However the will may be construed in the respect indicated is quite immaterial here. The plaintiff before the will was made was the owner of [854] a half interest in the real estate, and he or his wife might maintain an action for its partition. (Moore v. Moore, 47 N. Y. 467.) ’ By her will she could not deprive him of that right. There are before the court the executors who represent the personalty which is to be distributed under' the will, and the residuary legatees and devisees, so that every person interested in the property, whether they may take it as real estate or personalty, are before the court,' and whatever character the property may have as between them is immaterial so far as the plaintiff’s right to partition is concerned. If the property is sold the court has ample power to see that the one-half formerly belonging, to the testatrix is distributed to the parties .in the manner contemplated by the will. We purposely have not construed the will, confining this decision to the proposition .that neither the terms of the will nor the surrogate’s decree deprive the plaintiff of the right to maintain this action. The judgment should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event. All concurred; Houghton, J., not sitting. Judgment reversed and new trial granted, with costs to appellant to abide event. .