The Chancellor.
The bill in this case appears to have been filed upon the supposition that it is a part of the established jurisdiction of the court of chancery to settle all questions which arise as to the construction and validity of the provisions of a will of real estate, as W'ell as of personal property. This court has jurisdiction in cases of trust. And the executor always takes the legal title to the personal estate of the testator as a trustee. For so far as the provisions of the will are valid he holds the property in the character of trustee for the persons to whom it is bequeathed. And if there is any part of such property, or any interest therein, which is not legally and effectually disposed of by the will, he holds it as trustee for those who are entitled to it under the statute of distributions. Any person claiming an interest in the personal estate of the [200]*200testator, therefore, either as a legatee under the will, or as entitled to it under the statute of distributions, may file a bill against the executors, to settle the construction and ascertain the validity of the provisions of the will, so far as the complainant’s interest is concerned; and to enable him to obtain from the executors such portions" of the estate as he is either. legally or equitably entitled to. So also, if the real estate of the testator is devised to a trustee upon distinct and independent trusts, some of which trusts are valid and others invalid, there is a resulting trust in favor of the heir at law as to so much of the property as is not legally and effectually disposed of by the will; where the interest of each is not turned into a legal estate by the provisions of the revised statutes. The cestui que trust in such cases, also, may file a bill in this court to have his rights as cestui que trust in the estate settled and ascertained ; and to have the trusts of the will carried into effect so far as they are valid and effectual. And where there is a mixed trust of real and personal estate .it frequently becomes necessary for the court to settle questions as to the validity and effect of contingent limitations, in a will, to persons who are not in esse; in order to make a final decree in the suit, and to give the proper instructions and directions to the executors and trustees in relation to the execution of their trust. (Lorillard v. Coster, 5 Paige’s Rep. 215. Hawley v. James, Idem, 442.) But I am not aware of any case in which an heir at law of a testator, or a devisee, who claims a mere legal estate in the real property, where there was no trust, has been allowed to come into a court of equity for the mere purpose of obtaining a judicial construction of the provisions of the will. On the contrary, the decision of such legal questions belongs exclusively to the courts of law, except where they arise incidentally in this court in the exercise of its legitimate powers; or where the court has obtained jurisdiction of the case for some other purpose.
No possible question can arise in this case, and between these parties, as to the validity of the bequests of the will [201]*201as to any part of the personal estate of the testator. For the residuary bequest to the son gave to him all the personal property of the testator, and every estate and interest therein which had not been legally and effectually disposed of by the will. (Van Kleeck v. The Reformed Dutch Church, 6 Paige's Rep. 608.) It does not appear in this case who are the next of kin of J. W. Smith, or whether he left a widow or children, or made any testamentary disposition of his property at his death ; nor are his personal representatives before the court in this suit. There is in fact no question as to the rights of Mrs. Bowers in the personal property bequeathed to her and her mother by the third clause of the will. For it is bequeathed to them both, absolutely and unconditionally, except that Mrs. Bowers’ share is declared to be for her separate use, free from the control of her husband. One half of it therefore belongs to her, as her separate estate, and the other half belongs to her .mother. But if it was necessary for the court to settle any question as to that part of the testator’s personal property, this suit is not properly brought, to settle that question, in the name of the husband and wife jointly ; (See 2 Sim. & Stu. Rep. 464 ; 2 Keen's Rep. 73 ; 1 Beav. Rep. 96 ; and 8 Sim. Rep. 551;) though the defendants have probably waived the objection that the husband is not the proper party to file a bill for his wife’s separate estate, by answering the bill without objection. There is no allegation in this case, however, that the executor has refused to assent to the legacy in the third clause of the will; nor is it stated that Mrs. Bowers has not received her share of the personal property bequeathed to her and her mother.
The defendants in their answers in this case have made no objection to the jurisdiction of the court to declare the construction of the will. And if all those who are or may be affected by the decision of the questions arising upon the various provisions therein contained were before the court, so as to make the decree valid and effectual and binding upon their rights, it might be proper for me to proceed [202]*202and settle the questions raised in the complainant’s bill. But upon examination it will be found that there is no question of importance stated in the bill in which other persons, who are not before the court, nor properly represented here, may not be interested in the decision. And there are very few questions raised in which the parties to the suit appear to have any interests adverse to each other. Tire.question whether Mrs. Bowers and the widow are joint tenants in the real estate devised to them by the second clause of the will, or tenants in common during their joint lives, with cross remainders in the share of each to the survivor for life, appears to be of no importance whatever. For in either case partition of that part of the testator’s estate may be made between them for their joint lives, under the provisions of the revised statutes. (2 R. S. 317, § 1.) And as the widow elected to take the provision, in lieu of her dower, within the time allowed to her by the statute for that purpose, it is unnecessary to decide what would have been the rights of the heirs, or other devisees of the testator, in the real estate devised to her, if she had elected to take her dower in all the real estate of her deceased husband. The personal property bequeathed to her in lieu of dower would unquestionably have gone to the residuary legatee of the testator, as personal estate not effectually disposed of by the will, in the event which would have occurred if she had elected to take her dower. And I am inclined to think that the interest devised to her in the real estate would also have gone to the residuary devisee, under the seventh clause of the will, as a contingent interest in real estate which, in an event contemplated by the testator, had not been disposed of by his will. (Van Kleeck v. The Reformed Dutch Church, 6 Paige’s Rep. 600.) The decision of this court in the case of James v. James, (4 Idem, 115,) was founded upon the peculiar language of the general trust clause in the will. It was not intended to impugn the general principle, that a residuary devise of real estate carries to the devisee, not only the real estate of the testator which has not been de[203]
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The Chancellor.
The bill in this case appears to have been filed upon the supposition that it is a part of the established jurisdiction of the court of chancery to settle all questions which arise as to the construction and validity of the provisions of a will of real estate, as W'ell as of personal property. This court has jurisdiction in cases of trust. And the executor always takes the legal title to the personal estate of the testator as a trustee. For so far as the provisions of the will are valid he holds the property in the character of trustee for the persons to whom it is bequeathed. And if there is any part of such property, or any interest therein, which is not legally and effectually disposed of by the will, he holds it as trustee for those who are entitled to it under the statute of distributions. Any person claiming an interest in the personal estate of the [200]*200testator, therefore, either as a legatee under the will, or as entitled to it under the statute of distributions, may file a bill against the executors, to settle the construction and ascertain the validity of the provisions of the will, so far as the complainant’s interest is concerned; and to enable him to obtain from the executors such portions" of the estate as he is either. legally or equitably entitled to. So also, if the real estate of the testator is devised to a trustee upon distinct and independent trusts, some of which trusts are valid and others invalid, there is a resulting trust in favor of the heir at law as to so much of the property as is not legally and effectually disposed of by the will; where the interest of each is not turned into a legal estate by the provisions of the revised statutes. The cestui que trust in such cases, also, may file a bill in this court to have his rights as cestui que trust in the estate settled and ascertained ; and to have the trusts of the will carried into effect so far as they are valid and effectual. And where there is a mixed trust of real and personal estate .it frequently becomes necessary for the court to settle questions as to the validity and effect of contingent limitations, in a will, to persons who are not in esse; in order to make a final decree in the suit, and to give the proper instructions and directions to the executors and trustees in relation to the execution of their trust. (Lorillard v. Coster, 5 Paige’s Rep. 215. Hawley v. James, Idem, 442.) But I am not aware of any case in which an heir at law of a testator, or a devisee, who claims a mere legal estate in the real property, where there was no trust, has been allowed to come into a court of equity for the mere purpose of obtaining a judicial construction of the provisions of the will. On the contrary, the decision of such legal questions belongs exclusively to the courts of law, except where they arise incidentally in this court in the exercise of its legitimate powers; or where the court has obtained jurisdiction of the case for some other purpose.
No possible question can arise in this case, and between these parties, as to the validity of the bequests of the will [201]*201as to any part of the personal estate of the testator. For the residuary bequest to the son gave to him all the personal property of the testator, and every estate and interest therein which had not been legally and effectually disposed of by the will. (Van Kleeck v. The Reformed Dutch Church, 6 Paige's Rep. 608.) It does not appear in this case who are the next of kin of J. W. Smith, or whether he left a widow or children, or made any testamentary disposition of his property at his death ; nor are his personal representatives before the court in this suit. There is in fact no question as to the rights of Mrs. Bowers in the personal property bequeathed to her and her mother by the third clause of the will. For it is bequeathed to them both, absolutely and unconditionally, except that Mrs. Bowers’ share is declared to be for her separate use, free from the control of her husband. One half of it therefore belongs to her, as her separate estate, and the other half belongs to her .mother. But if it was necessary for the court to settle any question as to that part of the testator’s personal property, this suit is not properly brought, to settle that question, in the name of the husband and wife jointly ; (See 2 Sim. & Stu. Rep. 464 ; 2 Keen's Rep. 73 ; 1 Beav. Rep. 96 ; and 8 Sim. Rep. 551;) though the defendants have probably waived the objection that the husband is not the proper party to file a bill for his wife’s separate estate, by answering the bill without objection. There is no allegation in this case, however, that the executor has refused to assent to the legacy in the third clause of the will; nor is it stated that Mrs. Bowers has not received her share of the personal property bequeathed to her and her mother.
The defendants in their answers in this case have made no objection to the jurisdiction of the court to declare the construction of the will. And if all those who are or may be affected by the decision of the questions arising upon the various provisions therein contained were before the court, so as to make the decree valid and effectual and binding upon their rights, it might be proper for me to proceed [202]*202and settle the questions raised in the complainant’s bill. But upon examination it will be found that there is no question of importance stated in the bill in which other persons, who are not before the court, nor properly represented here, may not be interested in the decision. And there are very few questions raised in which the parties to the suit appear to have any interests adverse to each other. Tire.question whether Mrs. Bowers and the widow are joint tenants in the real estate devised to them by the second clause of the will, or tenants in common during their joint lives, with cross remainders in the share of each to the survivor for life, appears to be of no importance whatever. For in either case partition of that part of the testator’s estate may be made between them for their joint lives, under the provisions of the revised statutes. (2 R. S. 317, § 1.) And as the widow elected to take the provision, in lieu of her dower, within the time allowed to her by the statute for that purpose, it is unnecessary to decide what would have been the rights of the heirs, or other devisees of the testator, in the real estate devised to her, if she had elected to take her dower in all the real estate of her deceased husband. The personal property bequeathed to her in lieu of dower would unquestionably have gone to the residuary legatee of the testator, as personal estate not effectually disposed of by the will, in the event which would have occurred if she had elected to take her dower. And I am inclined to think that the interest devised to her in the real estate would also have gone to the residuary devisee, under the seventh clause of the will, as a contingent interest in real estate which, in an event contemplated by the testator, had not been disposed of by his will. (Van Kleeck v. The Reformed Dutch Church, 6 Paige’s Rep. 600.) The decision of this court in the case of James v. James, (4 Idem, 115,) was founded upon the peculiar language of the general trust clause in the will. It was not intended to impugn the general principle, that a residuary devise of real estate carries to the devisee, not only the real estate of the testator which has not been de[203]*203vised to others, but also reversionary and contingent interests in the estate specifically devised, which interests, in the events contemplated by the testator, were not otherwise wholly and absolutely disposed of by his will.
There is a question of doubt in this case whether the limitation over to the children of Mrs. Bowers, in case she shall have any who shall survive her, is not invalid ; if it can only take effect, in favor of such children, when they arrive at the age of twenty-one. For if she should have children who are under age at the termination of her life and the life of her -mother, such a limitation to the children, if valid, would suspend the power of alienation for more than any two lives in being at the death of the testator. But if this limitation to the children of Mrs. Bowers is to take effect, in their favor immediately upon the termination of the life estate of their mother and grandmother in the premises, and is only to be divested in favor of the residuary devisee, or his heirs, in the event of the death of the children respectively under the age of twenty-one, which perhaps was the intention of the testator, this limitation to the children, as well as the contingent limitation over to the residuary devisee under the seventh clause of the will, may be found to come within the exception mentioned in the 15 th section of the article of the revised statutes relative to the creation and division of estates. (1 R. S. 723.) The complainants however have no authority to represent the rights of their future issue; and I am not aware that any of the parties now before the court have succeeded to the rights of the residuary devisee. It would be therefore improper to express any opinion as to the validity of these contingent limitations, when all the parties now before the court appear to have a common interest in defeating them; and while it is yet doubtful whether the events contemplated by the testator will ever arise.
The same questions substantially arise in reference to the substituted limitation in favor of W. Lawrence, the grandson, in case Mrs. Bowers dies without children j as the language of the devise to him is the same. And the [204]*204only difference in the two cases is, that there is a direct limitation over to the testator’s son, by the second clause of the will, in the event of the grandson’s dying under twenty-one, instead of leaving that limitation over to the operation of the general residuary clause. It is true the substituted remainder-man is before the court; but he is still an infant. A decree ought not therefore to be made at this time which might have the effect to compromit his rights upon a naked question of law, and where there is no necessity to adjudicate upon such rights. And being an infant he has not lost the right to insist that the court should not assume jurisdiction in this case, although his guardian ad litem has not raised that question by his answer. For the same reasons the court should not, at this time, attempt to settle the question as to the rights of the children of Mrs. Platt, under the contingent limitation to them contained in the sixth clause of the will; although three of her" children, who may survive her, are also represented here by their guardian ad litem.
Neither of the three daughters of the testator has any thing more than a life estate, devised to her, in the portion of the real estate which is afterwards contingently devised to her children ; and there is no possible doubt as to the validity of the devise of these estates for life. The invalidity of all or any of the subsequent limitations, therefore, would not present a case in which the devisees for life would be compelled to elect, between the property devised to them by the will, and their shares in the remainder which is cast upon them by operation of Iqw, as the heirs of the testator, if any other provisions of the will should eventually prove to have been inoperative and void.
I have not therefore been able to find any ground on which this court would be justified in retaining jurisdiction of this case, for the purpose of settling any of the various questions raised in the bill, in favor of the complainants. The bill must therefore be dismissed with Costs ; but without prejudice to the rights of the complainants or any of the other parties to -this suit in any future litigation.