Opinion
January 8, 1908.
S.D. Bentley, for the appellant.
The right of the plaintiff to maintain this action at all lies at the threshold of any investigation we are called upon to make. As life tenant she has exclusive possession and control of all the lands of the testator, with full authority to collect the rents and income therefrom, and they belong absolutely to her. There is no pressing necessity of a sale of any of these lands. The legacies and debts have all been fully paid, and nothing further can be done toward a settlement of the estate until the death of the plaintiff, and then the property will pass, by the terms of the will, to her daughter, if she survive her mother. No land has been sold over which a controversy has arisen, and no contract has been made the performance of which depends upon a construction of the power of the executrix to sell. No one is claiming in hostility to her. She, the executrix and life tenant, is invoking a court of equity to advise her whether she may accept an advantageous offer for any specific tract of this land of which she is now possessed. This is too abstract and indefinite a proposition for a court to entertain. A court of equity deals with definite, concrete and substantial controversies affecting the rights of property and general litigation, and is not a general legal adviser for executors.
Section 1866 of the Code of Civil Procedure prescribes when an action to test the validity of or construe a will may be maintained. It provides: "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."
The present action is not brought to test the effect of the disposition made of the testator's property, or of any interest therein. No controversy is involved. No one has challenged the authority of the executrix. No dispute has arisen over any title derived from her. She merely seeks a decision of the court in advance for a certificate of authority to exhibit to any prospective purchaser of these lands. An ex parte decision of that character would not bind any one.
There is no inherent power in a court of equity to construe a devise. Authority is derived from the section of the Code cited, or else belongs incidentally to their jurisdiction over trusts. ( Mellen v. Mellen, 139 N.Y. 210.)
In that case the court say (at p. 218): "The validity of devises and limitations in wills, or of a power conferred thereby, 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." To the same effect are: Horton v. Cantwell ( 108 N.Y. 255); Anderson v. Anderson (112 id. 104); Chipman v. Montgomery (63 id. 221, 230); Whitney v. Whitney (63 Hun, 69); Dill v. Wisner ( 88 N.Y. 153). In the case last cited the court states the proposition in this manner (at p. 160): "The right of an executor to commence an action for the construction of a will of real estate depends entirely upon the question whether he is invested with a trust under the will in reference to the subject-matter of the devise, and it is only in such cases that a court of equity, on the assumption of its right of supervision over trusts and trustees, will assume jurisdiction."
Also in Chipman v. Montgomery ( supra, at p. 230): "A court of equity has an incidental jurisdiction in respect to wills, and does not take jurisdiction of an action brought merely for the construction of a will or other instrument at the instance of every person who claims to be directly or indirectly interested in the subject-matter of the instrument. The rule is, that to put a court of equity in motion there must be an actual litigation in respect to matters which are the proper subjects of the jurisdiction of that court, as distinguished from a court of law. * * * It is by reason of the jurisdiction of the Court of Chancery over trusts that courts having equity powers as an incident of that jurisdiction, take cognizance of, and pass upon the interpretation of wills. They do not take jurisdiction of actions brought solely for the construction of instruments of that character, or when only legal rights are in controversy."
At best, the power of sale conferred upon the executors is discretionary and is not essential to carry out the scheme of the will. ( Coann v. Culver, 188 N.Y. 9.)
No title vested in the executors. They only possessed a naked power of sale. The power conferred upon Voshall to collect rents and care generally for the real estate created no trust in him, but was merely for the purpose of aiding the life tenants in the management of the property committed to them. The authority was personal to him and when he resigned as executor he relinquished his connection with the estate. The plaintiff possesses all the authority which her husband had and no one is questioning her right to collect and use the rents and profits and manage the real estate.
In case the land is sold, the executors are authorized to invest the proceeds. This authority created no trust over the land and does not become operative until the executors have exercised their discretionary power to sell.
The provisions of a will, although involving no trust, are often construed both in actions at law and in equity. In an action of ejectment, or partition, or of specific performance, or in various other forms of actions, it often becomes essential to interpret the terms of a will in order to determine the controversies of the litigants In these cases there is an actual issue involved. I am, however, unable to find any authority for an executor to maintain an action in equity which is solely advisory in the relief sought and involving the determination of no controversy over property rights.
We do not pass on any of the questions sought to be determined by this action and involving the construction of the will of the testator.
The judgment should be affirmed.
All concurred.
Judgment affirmed, with costs.