Opinion
January 5, 1950.
Present — Taylor, P.J., Love, Vaughan, Kimball and Piper, JJ.
Decree modified in accordance with the memorandum and as modified affirmed, without costs of this appeal to any party. Memorandum: The Surrogate's Court had jurisdiction to construe the will in this proceeding and to determine what title was devised and to whom. (Surrogate's Ct. Act, §§ 40, 145; Matter of Engel, 140 Misc. 276; Matter of Walsh, 146 Misc. 56.) We agree with the construction placed upon the will by the Surrogate's Court. The intention of the testator to devise a fee simple to her husband is plainly evident by reason of the will itself and the testimony. The decree, however, provides that the husband was entitled to immediate possession of the premises, individually, as of the date of decedent's death. The question of possession was not before the Surrogate and was not inherent in nor necessary to a construction of the will. If any person, other than the husband, has or claims to have a right to possession, such right may be determined in a proper action in the appropriate court. The question before the Surrogate's Court was simply what title was devised to the husband. The decree should be modified by striking from the second ordering paragraph the words "and that he was entitled to immediate possession thereof, individually, as of the date of decedent's death by virtue of said provision." All concur. (Appeal from a decree construing a will.)