Opinion
March 10, 1959
Burke Burke for petitioners.
In this probate proceeding the proponent also requests a construction of the will.
The court undoubtedly has power to construe a will at any stage (Surrogate's Ct. Act, § 145), however, when a construction is sought during the probate proceeding the court will, in its discretion, grant the application only when there is a showing of an essential need for construction. It has been uniformly held that the exercise of the court's discretion in favor of construing a will at this time is only when it is required for the orderly administration of an estate, a determination of necessary parties or other cause of like nature.
In the case at bar construction is sought for a determination as to whether there is an intestacy of the residue or whether the will has provided for the disposition of the remaining assets. This determination is normally left for the accounting proceeding.
The courts have rightly proceeded on the proposition that to decide in advance an issue that may arise in futuro subject themselves to possible legislative change or circumstances that may not be the same then as now ( Matter of Mount, 185 N.Y. 162).
The court will not indulge in rendering an impotent decision tainted with fugacity. The proponent is to proceed with the probate of the will and the application for construction is denied without prejudice to a similar application being made at the time of accounting.
Proceed accordingly.