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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 226 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 228 Under the cover of an action in form for the construction of the will of John S. Chipman, the ancestor of the principal contestants, it is sought to overthrow the will and establish the right of the plaintiffs to share in his estate as in the case of intestacy. The claim put forth and urged in every stage of the action rests upon an alleged intestacy of the decedent, by reason of the invalidity of the attempted testamentary disposition of the bulk of his property. It is insisted that the whole scheme and purpose of the will fails for the want of an effectual gift of the principal portion of the estate, which could not take effect because violative of the law against perpetuities. The plaintiffs as heirs at law and next of kin, claiming in hostility to the will, have no interest in the interpretation of that instrument, and have no standing *Page 230 in court in an action for that purpose, but must assert their rights directly by proper action at their peril, taking the chances of being subjected to costs in case of failure as in other controversies. (Post v. Hover, 33 N.Y., 593; Bowers v. Smith, 10 Paige, 193.) 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. Although the distinction between actions at law and suits in equity is abolished, the distinguishing features of the two classes of remedies, legal and equitable, are as clearly marked and rigidly observed as they ever were, and this is essential to the administration of justice in an orderly manner and the preservation of the substantial rights of suitors. This results not from any necessary difference in the forms of pleadings and of actions, but the substantial difference between legal and equitable rights. Hence one who claims real property must bring his action of ejectment or other proper action for its recovery, and he who had a right to personalty or to any debt or duty, which is the subject of an action at common law, must resort to the appropriate remedy by action for the specific property, debt or duty, or damages for the infringement of his right. 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. Judge FOLGER, in Bailey v. Briggs (56 N.Y., 407), well expresses the rule in these words: "It is when the court is moved in behalf of an executor, trustee orcestui que trust, and to insure a correct administration of the power *Page 231 conferred by a will, that jurisdiction is had to give a construction to a doubtful or disputed clause in a will. The jurisdiction is incidental to that over trusts." This is in accord with all the cases in which the question has been considered by the courts in this State. (Walrath v. Handy, 24 How. Pr., 353; Post v. Hover, supra; Woodruff v. Cook, 47 Barb., 304; Bowers v. Smith, supra; Onderdonk v. Mott, 34 Barb., 106.) In Kiah v. Grenier (56 N.Y., 220), as the respondent had judgment of affirmance, the objection to the case made by the plaintiff, and her right to maintain the action, was not considered.
The plaintiffs neither by their complaint nor their contention in this court, or in the court of original jurisdiction, allege a trust for their benefit and seek its due execution, and ask a construction of the different parts of the will as affecting that trust. It is true that the counsel for the plaintiffs, while alleging the invalidity of the residuary clause of the will, did claim, that if it was valid, a trust was created in which they have a remote and contingent interest, and that by reason of such trust the court had jurisdiction of the action, and as an incident of that jurisdiction could pronounce upon the validity of the clause creating the trust, and adjudge them entitled, as heirs and next of kin, to the destruction of the trust and the overthrow of the entire will. The plaintiffs cannot entitle themselves to the intervention of the instrument while occupying such a position. They cannot, for the purpose of giving the court jurisdiction, allege a trust within the general powers of the court, and in the same breath deny the legal existence of the same trust, and insist upon legal rights inconsistent with it. The trust being invalid the court cannot entertain jurisdiction of the other matters. If the trust attempted to be created by the residuary clause of the will is legal, then there is no need of a judicial construction of the instrument, for no question is made as to its true meaning or the rights of the parties. If it is invalid, as in contravention of the statutes against perpetuities, then the rights of the parties are purely legal and to be enforced as such. The plaintiffs, to *Page 232 entitle themselves to the action and judgment of the court, either in the execution of the testamentary trust or in the construction of the will and the adjustment of the rights of the parties under it, must elect to take in subordination to the will and under the trust as created by the testator, and establish their rights as cestuis que trust. They cannot have the benefit of a trust which they repudiate, merely to give them a standing in court. They should, in their complaint, have unequivocally avowed their election to accept the contingent benefit under the residuary clause, and renounced all adverse claims, and they can only demand a judicial construction of the will, and an accounting by the trustees when they shall do so. (Brown v.Ricketts, 3 J. Ch., 553.) It is very evident that when the plaintiffs assume that attitude, and claim only in accordance with the will, there will be no further litigation.
Assuming that the plaintiffs claim in this action only as contingent remaindermen, and to protect their interests as such under the will, and according to its terms, they have not made a case entitling them to an accounting, or to any equitable relief. They do not, in that aspect of the case, occupy the position ofcestuis que trust. The trust is only for the benefit of the children of the testator by his second wife, during their infancy, and must necessarily terminate before the estate can vest in the plaintiffs, or they can have any benefit under the devise, or vested interest in the fund. They only take a remainder after the death of the cestuis que trust, and the consequent termination of the trust, and they take the legal estate and not the beneficial interest of the estate held in trust. The powers of the trustees over the estate, to be exercised for the benefit of the cestuis que trust, the infants, are very broad, and only limited by the necessities of the beneficiaries and the proper management of the estate in the judgment of the trustee. There is no averment that these powers have been or are being abused; that the estate is not properly managed and applied to the use of those entitled, and with discretion and proper economy. There is no averment of waste, or that the property or fund is insecure, *Page 233 or that the beneficiaries in esse are doing or threatening any act in derogation of the just right of those in remainder, or doing or threatening any act inconsistent with the proper administration of the estate, and their beneficial interests in and legal control over it. Upon any construction of the will, assuming its validity, there is but a bare possibility that the plaintiffs can ever become entitled to share in it. So remote is the contingency, that it would require a very strong case to authorize the intervention of the court to secure it against the beneficial user by those in esse, and to whom it is given absolutely, subject only to the happening of the death of the four first taking without issue, three of them infants at the death of the testator, and one or more of whom has issue living at this time. It is entirely unlike the case of Studholme v.Hodgson (3 P.Wms., 300), relied upon by the counsel for the appellants. In that case the plaintiff was entitled as devisee in remainder to the personal estate of the testator upon the death of the defendant, Mary Hodgson, without other issue than the son to whom the estate had been devised in the first instance, and in case of his death during infancy, then to the plaintiff upon the contingency mentioned. The son had died during infancy, and the mother, Mary Hodgson, was forty, and her husband, fifty years old. The court, holding that the accumulations from the death of the first devisee should be added to the capital, and would belong to the plaintiff in case no other issue was born to Mary Hodgson, decreed under the peculiar circumstances of the case that he was entitled to an account of the estate, and that it be set apart and secured for his benefit. The right was adjudged in that case not too remote in time for the intervention of the court, as it would be determined on the death of Mary Hodgson whether it would ever vest or not. The defendants were merely trustees, and had no beneficial interest or right to use the fund, although they claimed that Mrs. Hodgson was, by implication, entitled to the income, and this claim was rejected by the court.
But a full and complete answer to the claim of the plaintiffs *Page 234 to any relief as devisees under the will, is, that whether the devise of the residue to the widow and her children, by the testator, be adjudged valid or invalid, the devise over to the plaintiffs cannot be sustained, as it can only take effect upon the termination of four lives in being at the death of the testator. The gift over does not constitute an essential part of the disposition of the residue, so that it being invalid it taints and destroys the gift to the first takers, those whom the testator had chiefly in his mind, and to provide for whom was, as expressly declared, the primary and principal object of the will. The devise over was incidental and to provide against a contingency which might, but was not likely to happen, and if that incidental purpose chances to be illegal, it does not destroy the principal and lawful purposes of the testator. The object of the action is to nullify and destroy, and not to ascertain the true intent, and to carry into effect the purposes of the will, and is without a precedent.
It was suggested as one ground upon which the action could be maintained, should it be held that in respect to the realty the plaintiffs must resort to an action of ejectment or other proper action for its recovery if it was not effectually disposed of by the will, that if the disposition of the residue of the estate was invalid, the plaintiffs, as next of kin, were entitled to an accounting in respect of it, and a distribution among those entitled. Two of the plaintiffs have received, in whole or in part, the legacies given them by the will, and having accepted the benefits of the provision made for them, cannot be heard in opposition to other parts of the instrument, except by proof of circumstances showing that they had not intelligently elected to take under the will rather than in opposition to it, and a return of all that has been received by them. A person cannot accept and reject the same instrument. Courts of equity proceed upon the theory that there is an implied condition, that he who accepts a benefit under the instrument shall adopt the whole, conforming to all its provisions and renouncing every right inconsistent with it. (2 Story Eq. Juris., § 1077, and cases cited in note, *Page 235 2; Havens v. Sackett, 15 N.Y., 365.) Lord REDESDALE held that this rule of election was applicable to every species of instrument, whether deed or will, and to be a rule of law as well as equity. (Birmingham v. Kirwan, 2 Sch. Lef., 444.) There is no fact assumed or proved to destroy or detract from the effect of these receipts as evidence of a deliberate election to accept under the will. Two other of the plaintiffs are infants and incapable of election or of bringing an action dependent upon an election between the conflicting rights except by direction of the court upon an investigation of the facts, and ascertaining what would be for their interest. The guardian ad litem does not profess to have chosen for them, and his election would not bind them had he done so. The only other plaintiff was not a beneficiary under the will, and is not driven to an election, but she has brought a joint action with others, as plaintiff, and to give judgment for her, dismissing the complaint as to the other plaintiffs, would leave the action defective for want of parties. All are necessary parties, but they cannot maintain a joint action. The court below was not asked to retain the action as the several action of Mrs. Ford, and the complaint was properly dismissed as to all.
Again, as an action for an accounting as to the personalty, as in case of intestacy, the action ought not to be sustained. The laws give full powers to the Surrogate's Court to call executors and administrators to an account, and to distribute the estate among the next of kin, and to pass upon every question that may arise, whether directly or indirectly, in the progress of the accounting and final distribution. That is the appropriate tribunal, conceding that, to a limited extent, concurrent jurisdiction exists in a court of equity. The jurisdiction of courts of equity, in respect to accounts in the course of administration and the marshaling of assets, grew out of the defects in the process and powers of ecclesiastical courts, and the early courts of probate. The jurisdiction over cases of administration was made to rest upon the notion of a constructive trust in executors and administrators, as well as the *Page 236 necessity of taking accounts and compelling a discovery. (1 Story Eq. Jur., § 534.) But these considerations do not apply in ordinary cases to the settlement of estates in this State, and to withdraw a case of mere settlement of an estate disconnected with the enforcement of a special and express trust, as distinguished from what is called a constructive trust in all administrations, from the tribunal created for that purpose with ample powers, special reasons should be assigned, and facts stated to show that full and complete justice cannot be done in that court. Upon a final accounting, and that is what the plaintiffs are entitled to if they have any rights as next of kin, creditors as well as next of kin and legatees are entitled to be heard, and they may much more easily be cited before a surrogate than made parties to a formal suit in equity. (2 R.S., 93, § 60.) The complaint is not framed, nor was a case made for an accounting in a court of equity by the administrator de bonis non, or by the representatives of the deceased executrix. Ch. KENT recognizes the rule that creditors may come into the Court of Chancery for the discovery of assets; but that draws the whole settlement of the estate into chancery, which certainly is not to be encouraged. (Thompson v. Brown, 4 J. Ch., 619.) In Seymour v. Seymour (id., 409), the court refused to take jurisdiction and interfere with the ordinary exercise of the powers of the surrogate in the settlement of the accounts of administrators and the distribution of the estate without some special reason set forth in the bill. The province of the Court of Chancery was to aid by discovery, and, when necessary, by injunction, the courts of surrogates, in the exercise of their general powers; and the jurisdiction should be regarded rather as auxiliary than concurrent. But there is no action permissible now for a discovery, and the plaintiffs do not make a case for, or ask an injunction. It is not optional with executors and administrators accounting on their own motion, or creditors, legatees or next of kin, calling them to an accounting, to pass by the Surrogate's Court, having ample jurisdiction in the premises, and, without assigning any special reason, and proceed by *Page 237 formal action in a court of equity, making all persons whose presence is necessary to a final accounting parties to the action. It would be unreasonable to subject the parties to the vexation and delay, and the estate to the unnecessary costs of such a litigation. (Adams v. Adams, 22 Vt., 50.)
There is no question properly before us, as to which of the two instruments was the will of the testator, or whether both with the codicil to the last constituted such will. All these instruments were probated, and adjudged to constitute, together, the will of the decedent; and this adjudication is unreversed; and whether the legacies were cumulative is a question of law, to be determined when the legatees shall demand them as cumulative legacies by action, as they may, or seek their payment by proceedings before the surrogate, as is usually done. Whether the will is valid or invalid, the plaintiffs are not entitled to maintain this action; and the judgment dismissing the complaint should be affirmed with costs. The costs below were in the discretion of the court.
All concur.
Judgment affirmed.