In re the Judicial Settlement of the Account of Garside

Hotchkiss, J.: By the 3d claúse of decedent’s will a life interest in the rents and profits of the real estate is devised to appellant. I do not construe the tripartite agreement of May 3, 1905, as an assignment by the appellant to the trustees of this interest. Although, for the considerations appearing in the agreement, and so long as they perform its obligations, the trustees are to be subrogated to appellant’s interest in the income, there are no words of transfer of the estate itself, and should the trustees at any time fail in their obligations no reconveyance to appellant would 898 be necessary to enable her to claim under the terms of the will. Furthermore, if the words of the agreement were construed as sufficient in themselves to work an assignment of appellant’s beneficial interest, the instrument would be void on its face and unenforcible (Real Prop. Law, § 103; Laws of 1903, chap. 88.)* To set it aside or avoid its provisions appellant would not need the aid of a court of equity, for the paper is a nullity and must be so regarded, whether offered to a court of equity or to a court of law. I find no authority for the proposition that the surrogate has no jurisdiction to consider the instrument for the purpose of determining whether or not on its face it is void. To do this no function of a court of equity need be invoked. The distinction between an instrument “ apparently valid” (Matter of Randall, 152 N. Y. 508, 520) and one apparently valid needs no elaboration. It is urged, however, that the exceptions sought to be filed by the appellant to the account of the trustees are on their face frivolous.- Were this true it might be so determined by this court and it would be unnecessary to send the matter back to the surrogate, but a careful examination of the exceptions and the account suffices to show that, whatever may be their merit in fact, they are not on their face frivolous. The decree should be reversed, with ten dollars costs and disbursements, and the proceedings remitted to the Surrogate’s Court, with directions to proceed upon the appellant’s objections. Ingraham, P. J., Laughlin, Scott and Dowling, JJ., concurred. Decree reversed, with ten dollars costs and disbursements, and proceedings remitted to Surrogate’s Court as directed in opinion. Order to be settled on notice. Footnotes [*] See Real Prop. Law (Consol. Laws, chap. 50; Laws of 1909, chap. 52), § 103; re-enacting Real Prop. Law (Gen. Laws, chap. 46; Laws of 1896, chap. 547), § 83, as amd. by Laws of 1903, chap. 88.—[Rep.