This is an Ohio will, but it is entirely proper to bring an action for its construction in this state in reference to real estate of the testator situated in this state, and that is all that this action is. There is no effort to have it construed in any other respect, and, if necessary, it would have to be construed in that respect. The learned and able Justice below overruled the demurrer to the complaint which is on the ground that the complaint does not state facts sufficient, giving as his reason that a complaint which presents •a case calling for the construction of a, will states a cause of action, and must be tried on an answer, as a judgment of construction can be given only upon such a trial, and not upon a demurrer. In this reason he was entirely correct; and the only question therefore is whether the complaint states a case calling for. a construction. And in determining this the rule seems to be that a mere pretense will not do; that there must be a real question of construction, and not a mere frivolous one. It may be true that in determining that the question is only frivolous, the will is actually construed in the respects presented; but such seems to be the rule nevertheless, on the ground that' the court ought not to take jurisdiction of a frivolous ease (Horton, v. Cantwell, 108 N. Y. 255).
. The clause of the will presented for construction leaves one undivided one fifth of the testator’s estate, real and personal, to trustees to pay the income thereof to the father of the plaintiffs for life, the principal to be transferred and conveyed by. the trustees to his children absolutely on his death and on the youngest child coming *276of age. There is a general power of sale of the real estate by the will to the executors and trustees. The father is dead. The alleged question for construction is, first, whether there is an equitable conversion of the realty into personalty by the will, and, second, whether the trust is a valid one, the plaintiffs claiming that it is. If it be not valid, then there would be an intestacy in respect of this undivided one fifth part of the real estate, and it descended to the plaintiff’s father and three other heirs of the testator, in which case the interest of these two plaintiffs in the said one fifth would be only one fourth thereof. If it be valid, it is unimportant to decide whether there be such equitable conversion of the real estate, for in either case the plaintiffs are entitled to the said one fifth at the end of the trust, whether in realty or personalty; and as the power of sale may be exercised up to that time, they may get it in personalty, even though there be no equitable conversion.
No reason whatever is given for even a suggestion that the trust is void. /It is so plainly valid as not to be open to discussion on that head. And equally frivolous is the claim of an equitable conversion. There is no mandatory power of sale, nor is an equitable conversion necessary to the carrying out of the simple scheme of the will.
It seems timely to say, however, that demurrers to such complaints should not be encouraged, unless the plaintiff have no interest or .status to maintain the action, or the like, for questions of construction which are open to argument at all may not be treated as frivolous, and the rule as to frivolousness is therefore an uncertain one. The question may be just as well tried on an answer in every case.
The judgment should be reversed and the demurrer sustained.
Jenks, J., concurred.
Interlocutory judgment reversed, with costs, and demurrer sustained, with costs, with leave to plead over on payment.