We see nothing which justifies the plaintiffs in having brought this action. The matter relates merely to the division of money among those claiming it. In regard to the rye, oats, &e., there is no allegation that these exist in specie-. Whatever the executors, have to divide must be in money or its equivalent.
There is no continuing trust. Nothing is to be done but to distribute the property. This is a matter properly within the control of the surrogate on the final accounting ; proceedings for which had been instituted before this action was commenced.
Executors are not to be permitted to bring such a suit as this on the pretense that a construction of the will is needed. Of course, in one sense, a construction of the will is required whenever an executor settles his accounts. But certainly it is not to be allowed that an action for the construction of the will may be brought whenever an executor is about to account and the parties interested do not agree. It is when there is some continuing duty, some trust which requires and will require action for some time to come, that executors or trustees may bring an action to obtain a construction of a will; that is, to obtain advice as to their duty. Such suits are not to bo encouraged. They burden the estate with costs. That has been the case here. The costs amount to more than $910, to be j>aid' out of the estate. While, if the matter had been brought up on the accounting before the surrogate it could have been disposed of quickly and with little expense.
It is' the duty of courts to scrutinize such actions as this. Where all the costs are to be paid out of the fund, or the estate, there is great liberality among opposing counsel. The extra allowances in this case reach $550.
We think that the court should have refused to entertain the *239action. It must be remembered, that an action of this kind is, in a certain sense, discretionary. It is one where, out of favor to trustees or sometimes to cesúuis que úrust, the court will give advice instead of granting a remedy. Such actions should not be extended to unnecessary instances. "We think tbe present action unnecessary and improper. If the defendants had taken that position the complaint should have been dismissed with costs. As they did not do so, but themselves encouraged the litigation, the complaint should now be dismissed without costs to any party in this court or in. th& court below.
Present — Learned, P. J., Bocees and Poelett, JJ.Judgment reversed and complaint dismissed, without costs to any party.