MONYPENY ET AL.
MONYPENY ET AL.
Appeal from Special Term, Westchester County.
Action by Brunson B. Monypeny and another, by Alpheus H. Favour, guardian ad litem, against William Monypeny, executor, and others. From an interlocutory judgment overruling demurrers to the complaint, defendants appeal. Reversed and demurrers sustained.
[115 N.Y.S. 805] W. C. Prime (Wm. Woart Lancaster, on the brief), for appellants.
John Jay McKelvey, for respondents.
Argued before WOODWARD, JENKS, GAYNOR, and MILLER, JJ.
The plaintiffs in this action, through their attorney, assert that this " action was brought to obtain a judicial construction of the will of William Monypeny, deceased, pursuant to section 1866 of the Code of Civil Procedure of the state of New York." All of the parties to the action are residents of the state of Ohio. The testator, whose will is involved, was a resident of the state of Ohio, and all of the property, with the exception of about 300 acres of unimproved land in the city of Yonkers, in this state, is within the state of Ohio. The will, which is made a part of the complaint, attempts to create various trusts, some of which would be clearly void in this state because of the fact that they are made to continue for a definite time, not measured by lives in being. All of the defendants, the principal ones being the executors and trustees named in the will, have been brought into the jurisdiction of the court through the publication of the summons, and the only possible justification for the action being brought in this state is the fact that this parcel of land exists, belonging to the decedent's estate. The action, we are told, is brought to obtain a " judicial construction of the will," under the provisions of section 1866 of the Code of Civil Procedure. The defendants have demurred to the complaint on the ground that it does not state facts sufficient to constitute a cause of action, and these demurrers have been overruled; the learned court, in a memorandum, saying:
" I do not think that, in order to maintain an action under section 1866 of the Code of Civil Procedure, it is necessary for the plaintiffs to establish that they first requested the trustees to bring such action. The other objections urged by the demurring defendants depend upon the construction of the provisions of the will, and present questions proper to be determined upon the trial of the action, and not upon a demurrer to the complaint. The very object of the action is to secure such construction."
The learned court below must have overlooked the fact that the will is made a part of the complaint under the provisions of the fifth subdivision; for the proper office of a demurrer is clearly to determine whether the complaint, as a whole, does state facts sufficient to constitute a cause of action, and if the complaint, with the will attached, does not state a cause of action, then the defendants are not called upon to litigate the construction of this will in a foreign jurisdiction. We are of the opinion that the complaint should have been examined, in connection with the will, which is made a part of it, and that the question of law thus raised should have been disposed of on the merits.
We are equally clear that the plaintiff has misapprehended the scope and effect of section 1866 of the Code of Civil Procedure, under which this action is brought, and that it was never intended to give the courts of this state jurisdiction of an extraterritorial character, such as is here attempted. The will is an Ohio will, creating various trust estates. [115 N.Y.S. 806] The parties all reside in the state of Ohio, and the defendants are only constructively in our courts; and if we should go on and give a judicial construction of this will, what authority is there in the courts of this state to enforce its mandate? True, there is the real estate within this jurisdiction; but it does not belong to the executors or trustees, except in their representative capacities, and any attempt on the part of the courts of this state to determine the duties of executors and trustees under the provisions of a will made and probated in the state of Ohio, in relation solely to residents of that state, would be a mere impertinence, and our courts ought not to take jurisdiction of such an action, unless it is imperatively demanded by the terms of the statute. Section 1866 of the Code of Civil Procedure does not demand such action. It does not in language purport to give authority for the construction of wills. It simply provides that:
" The validity, construction or effect, under the laws of the state, of a testamentary disposition of real property situated within the state, or of an interest in such property, which would descend to the heir of an intestate, may be determined, in an action brought for that purpose, in like manner as the validity of a deed, purporting to convey land, may be determined."
That is, if a bona fide question arises as to the " validity, construction or effect" of a testamentary disposition of real property, the courts of this state may, in a proper action, determine the " validity, construction or effect" of such testamentary disposition. This does not attempt to give jurisdiction of the will, as a whole, permitting our courts to give judicial construction to a will of a foreign jurisdiction, affecting solely the interests of residents of a sister state, simply because there happens to be a piece of real property in this state. If there was any question whether title passed to this real property under the will, or if there was any question as to the identity of the property sought to be devised, or as to the effect of the testamentary disposition in disposing of the whole or part of the premises, it would be proper to bring an action under this provision of the Code of Civil Procedure to determine these questions, and the court would be called upon to construe the will, in so far as it related to the " validity, construction or effect" of the testamentary disposition; but there its powers and duties would end. It would have no power, in the absence of facts bringing the case within equitable cognizance, to go on and determine the purely academic questions relating to the duties of the trustees under the will. These trustees are within the exclusive jurisdiction of the courts of the state of Ohio, in so far as their trust duties are concerned; and, as there is no question presented by the complaint as to the " validity, construction or effect" of the testamentary disposition of the real property located in this state, there is no cause of action stated within the provisions of section 1866 of the Code of Civil Procedure. There does not even appear to be a legitimate controversy to be settled, even assuming the court to have jurisdiction.
It is alleged on information and belief that one of the defendants holds to a construction of the will differing from that of the plaintiffs, and that the trustees have refused to commit themselves; but it appears [115 N.Y.S. 807] from the complaint that from the time of the death of the testator in September, 1899, to the bringing of this action-
" the trusts created by the will have been carried out in accordance with the provisions of the will under the laws of the state of Ohio, as valid trusts, and all the parties interested have since the death of said testator in September, 1899, treated the said trusts as valid and existing trusts, and have accepted their interests under the said will as such, and in all respects the interests of the plaintiffs herein and of all of the beneficiaries under the said will have been assumed to be as fixed by the terms of the said will."
There is no allegation that any one has attempted to interfere with this status, or that any one has questioned the title of this real estate in the trustees; and the principal contention seems to be that by the terms of the will, giving the power of sale of the testator's real estate. the particular real estate involved in this action became converted into personal property, and that this should be held to be the proper construction of the will. But the question of whether this real estate is to be considered as real estate or personal property has nothing whatever to do with the " validity, construction or effect" of the testamentary disposition of the property. It might be important, on a question of whether the trustees in the state of Ohio were properly administering the property; but that is a question not open to the courts of this state under the provisions of section 1866 of the Code of Civil Procedure. " The validity of devises and limitations in wills, or of a power conferred thereby," say the court in Mellen v. Mellen, 139 N.Y. 210, 218, 34 N.E. 925, 927," depends upon and is determinable by legal rules, and their determination must ordinarily await an occasion when, in a legal action or proceeding, a right under the devise or limitation, or the execution of the power, is asserted by one party, or denied by the other.*** Moreover, the language of the statute is confined to actions to determine the ‘ validity, construction or effect of a testamentary disposition.’ The question whether the power of sale given to the executor by the will of Abner Mellen is valid does not affect the ‘ testamentary disposition’ made by the testator of his lands. It is collateral to the ...