In re Hilliard's Estate

160 N.Y.S. 514

Opinion

FOWLER, S.

The surrogate has authority to construe a will in an accounting proceeding only when it is necessary to make such determination. Section 2510, C. C. P.; Garlock v. Vandervort, 128 N. Y, 374, 28 N. E. 599. The rule is well stated in Washbon v. Cope, 144 N. Y. at page 295, 39 N. E. at page 390, where it is said:

“As a general rule, the surrogate has no jurisdiction to construe the provisions of a will, except ini so far as it is necessary for him so to do in order that he may properly perform some other duty’’ (citing Mellen v. Mellen, 139 N. Y. 210, 34 N. E. 925).

In Re Davis, 105 App. Div. 226, 93 N. Y. Supp. 1004, the court is explicit on the same point. This application does not fall under the new sections creating a court of construction in this tribunal. There seems to be no present necessity for any construction, and therefore it ought not to be undertaken. See Peckham, J., Horton v. Cantwell, 108 N. Y. 269, 15 N. E. 546.

The application for construction must therefore be denied at this time, without prejudice. The accounting decree may be settled on the usual notice.