As stated by Hr. Justice O’Brien in his opinion, the sole question to be decided on this appeal is- whether St'. Luke’s Hospital, from whom the, plaintiff acquired title, ever had a valid title to the premises in question. That question -depends .upon the validity of the will of ■ one Mary M., Keese, who died April 8, 1877, leaving her surviving two sisters, her only heirs at law.' The reféree, upon an examination of the will, held that the devise of the residuary estate in this will to the New York Hospital was void as having been made less than two months prior to the death of the . testatrix. Without considering the effect of the decree of the surrogate, entered on the 31st day of January, 1878, admitting this "will to probate, it is quite clear that if the beqtiest to the'New York Hospital -was void, the title of the property vested in the testatrix’s ■ heirs at law, and the subsequent action in which the property was sold would not divest them of that title, as they were not parties to that action. Unless, therefore, the question as to the validity of this will is settled by a binding adjudication of the surrogate as to -the validity of this residuary bequest, the question as to the validity of the bequest to St. Luke’s Hospital must be-determined. It appears that on the application to prove this will before the surrogate, in which proceeding the heirs at law who were parties, appearing by counsel, filed objections in opposition thereto, a decree was entered which recited that the surrogate, having examined the subscribing witnesses to the will, and having heard the proofs and allegations of the parties, and that “ a contest having arisen as to the validity of certain of the devises and bequests contained in the said will, that is to say, the bequest to the residuary legatee — St. Luke’s Hospital in the city of New York in the seventh clause, -the bequest to the-New York’ Society Library in the ninth clause, the bequest to the President and Fellows of Yale College in the tenth clause, and the *449devises and bequests to St. Luke’s Hospital in the city of New York in the eleventh and twelfth clauses of said will (these last clauses, or the twelfth clause, being bequests of all the rest, residue and remainder of the testator’s estate), and the counsel for the respective parties having been heard and due deliberation being had upon the proceedings aforesaid, it is now, upon motion, adjudged and decreed,” by the surrogate that the- said will Avas the last Avill and testament of the said Mary M. Keese, Avas executed and attested in the manner prescribed by law for the execution and attestation of last wills and testaments, and that the said last will and testament be admitted to probate ; and it is further decreed and adjudged by the said surrogate that the said several devises and bequests contained in the seventh, ninth, tenth, eleventh and twelfth clauses of the said will and all the provisions of the said will and dispositions therein contained are valid, and that the several corporations above named, viz., St. Luke’s Hospital in the city of New York, the New York Society Library, the President and Fellows of Yale College, are authorized and entitled to take and hold the money and property in said will devised and bequeathed to them respectively.
It is clear that, if the surrogate had jurisdiction to pass upon the question of the validity of the derdse and bequest of the residuary estate to the St. Luke’s Hospital, this adjudication is binding upon all parties to the proceeding before him. Prior to the passage of the -act of 1870, it is clear that the surrogate had no authority to determine the validity of a disposition of real estate by Avill. He had authority to admit a will "disposing of real estate to probate, and such decree was prima facie evidence of the due execution of the will, and the testamentary capacity of the testatrix at the time of the execution of the will.
By section 11 of chapter 359 of the Laws of 1870, which act was in force at the time of the proceeding for the probate of this will, it is provided that: “ In any proceeding before the said surrogate to prove the last will .and testament of any deceased person, as a will of real or personal estate, or of both real and personal estate, in case the validity of any of the dispositions contained in such will is contested, or their construction or legal effect called in question by any of the heirs or next of kin of the deceased, or any legatee or devisee *450named in the will, the surrogate shall have the same power and jurisdiction as is now vested in and exercised by the Supreme Court, ' to pass upon and determine the true construction, validity and legal effect thereof; ” and the only question presented here.is whether or not this provision gave to the surrogate jurisdiction to adjudge that the residuary bequest to the St. Luke’s Hospital was valid, and whether or not under the twelfth clause of the will the St. Luke’s ■Hospital was authorized and entitled to take and hold the residuary estate of the testatrix devised and bequeathed to it. It is clear that the proceeding in which this decree was entered was a proceeding before the surrogate of New York county to prove the last will and testament of Mary M. Keese, deceased. It is also clear that the heirs at law and next of kin of the testatrix were parties to that proceeding and were represented before the surrogate by counsel; that a contest had arisen as to the validity of this devise to the St. Luke’s Hospital of the residuary • estate of the testatrix, and that the counsel for the respective parties were heard upon that question before the surrogate, and that, upon such hearing, the surrogate adjudged as to the validity of 'the disposition contained in the Will by which the St. Luke’te Hospital became the residuary legatee and devisee of the testatrix, and adjudged as to the construction and legal effect of such bequest. This adjudication, therefore, appears to be in all respects a valid adjudication by which the residuary bequest and devise to the St. Luke’s Hospital was adjudged to be valid, and sufficient to vest in the St. Luke’s Hospital the title to the property in question.. If the Legislature had the power to vest in the surrogate jurisdiction to determine this question of' the validity of this bequest and devise of the residuary estate to the St. Luke’s Hospital, it is quite clear that such adjudication was binding upon all the parties to the proceeding. The power of the Legislature to vest this jurisdiction in the surrogate does not seem to have been questioned in any of the cases to which our attention has been called, and by the repeal of this act in 1880, and the substitution for it of the section of the Code of Civil Procedure, it would appear that the surrogate had now no jurisdiction to determine this question. In the few. instances in which this act of 1870 has been before the courts, the question as to the power of the Legislature to pass the act' seems to have been conceded. Thus, in the case *451of Bevan v. Cooper (72 N. Y. 329) the surrogate of New York, upon a final accounting of the executors, construed the will by holding that certain legacies were not charged upon the residuary estate which consisted of realty. In that case the court said: “ The act of 1870 (Chap. 359, § 11) does not affect the question before us adversely to these views. It is rather a legislative declaration that such jurisdiction does not exist without express conferment by statute. By that statute the same power and jurisdiction is given to the surrogate of New York, in any proceeding before him to prove a will, as is vested in the Supreme Court to determine the true construction, validity and legal effect of the will. It is seen that the power thereby given is restricted to a proceeding to prove a will, and to that only.” But, as this proceeding in which this decree was entered was a proceeding to prove the will, the jurisdiction conferred by the statute applied.
The decree of the surrogate relied on in the case of Stilwell v. Carpenter (59 N. Y. 420) arose upon an accounting, and was not a decree entered in a proceeding before the surrogate to prove the last will and testament of a deceased person, and it was the surrogate of Kings county who made the decree, the act of 1870 applying only to the surrogate of New York county. And in the case of Riggs v. Cragg (89 N. Y. 480) the court, when holding that the surrogate had no general jurisdiction in the construction of wills, held that where the right to a legacy depends upon á question of construction-which must be determined before a decree for distribution can be made, the surrogate has jurisdiction upon a final accounting, where all parties interested are before the court, to make a distribution. No doubt was there intimated as to the power of the Legislature to confer upon the surrogate jurisdiction to construe a will, and it was even there held to be vested in him as incident to the power to grant a decree for final distribution, and many cases are cited where the court has sustained the power of the surrogate to construe a will where it is necessary for the accounting and distribution. We have thus an express provision of law giving to the surrogate in a proceeding before him to prove a will the same power and jurisdiction as was then vested in and exercised by the Supreme Court to pass upon and determine the true construction, validity and legal effect of any of the dispositions contained in said will by *452an heir of the deceased. The appearance of such heirs before the surrogate, their presenting to him the question as to the validity of the disposition of the residuary estate of the decedent to the New York Hospital, and the adjudication by him of such disposition is legal, and vests the estate in such hospital; and I can see no reason why that is not a binding adjudication upon all the parties to that proceeding, including the heirs at law of the deceased, which cannot be questioned, except on a direct appeal from that decree.
The point is made by the defendant that this provision of the act of 1870 is unconstitutional as taking away from the heirs at law the right to a trial by a jury of their right to this estate. The question presented to the surrogate was one as to the construction of the ■will. It is not pretended that a question of fact was involved, but it was a pure question of law which, in the Supreme Court, would have been decided by the court and not the jury. The next of kin had no right to have the question of the construction of the will, or as to whether or not the provisions of the act of 1848, under which the New York Hospital was incorporated, avoided the devise tried by a jury; but even if the heirs at law had'.such a right, their appearance before the surrogate, and submitting to the jurisdiction without objection, or without demanding a trial by a jury, was a waiver of that right, and gave the surrogate jurisdiction.
I think, therefore, that the decree of the surrogate was conclusive upon all the "parties to that proceeding, and .that, having passed upon, the validity and legal effect of this will, and adjudicated that the New York Hospital took the residuary estate under it, the heirs at law were bound by that adjudication, and under it the New York Hospital took ,a good title to the residuary estate of the testatrix.
I concur, therefore, that under the stipulation of the parties the judgment should be reversed and judgment entered in favor of the plaintiff in pursuance of the stipulation,, with costs to the plaintiff in this court and in the court below.
Patterson, J., concurred.
Judgment reversed and judgment ordered for the plaintiff pursuant to stipulation, with costs in this court and in the court below.