Crouse v. Wilson , 73 Hun 353 ( 1893 )

MERWIN, J.

The main argument of the learned counsel for the plaintiffs seems to be based on the theory that the action is for the construction of a will. The character of the will does not sustain this theory. There is no doubt about the intention of the testator. The residue is given to his “heirs and next of kin, in the same proportion that is provided by the laws of the state of New York in cases of intestates.” No construction is needed to carry out this provision. The statute regulates the subject. It is not claimed that the action is for an accounting. The complaint is not on that basis. From the record before us it appears that the action was commenced February 2, 1893, which was the day 'after the proof of the will. In some cases it has been held that a court of equity may, in its discretion, entertain an action against executors for an accounting. The plaintiffs are not in a position to get the benefit of such cases. There is no allegation that the estate is in danger, or that the executors desire any instructions from the court. It is very evident that the object of the action is to obtain beforehand a determination that the defendants who claim to be the widow and heir of the testator are not such widow and heir. Will an action in equity lie for such purpose? No precedent is cited that sustains the action; on the contrary, there are many cases looking the other way. In Garlock v. Vandevort, 128 N. Y. 374, 28 N. E. 599, it was said that an uncertainty as to whether a certain party was within a class to whom a bequest was made did not constitute any ground for invoking the equity jurisdiction of the supreme court. In Hobart College v. Fitzhugh, 27 N. Y. 130, a legacy was payable at a certain time on the performance of certain conditions, and it was said that an action would not lie, in advance of the time of payment, to determine whether the conditions had been properly performed. In Perry, Trusts, § 17, it is said that a bill in equity cannot be maintained simply to establish the fact of a trhst, no other relief being sought, even where its existence is denied. Upon the distribution of the estate in the surrogate’s court, that court has full power to determine to whom the legacies or distributive shares are payable. Riggs v. Cragg, 89 N. Y. 490; In re Verplanck, 91 N. Y. 439. The questions involved in this case, and the authorities on the subject, are fully and very satisfactorily discussed in the opinion of Mr. Justice VANN delivered at special term, and it is not necessary to refer to them here further. We see no good reason for disturbing his conclusion in the matter. The judgment should be affirmed. Judgment affirmed, with costs. All concur.