There was no issue before the surrogate to ivarrant the admission of the extrinsic parol evidence relating to the circumstances under which the first codicil was executed, and no jurisdiction in that officer to try the question sought tO' be raised by such evidence. The answer filed to the petition for probate made no question over that probate, and by its silence conceded the due execution of the will by a capable *78 testatrix, acting freely and without restraint. The issue tendered was that allowed by section 2624 of the Code of Civil Procedure, which permits on the probate of a will the deter urination by the surrogate of “ the construction, validity and effect ” of any disposition of personal property contained in it. 'That issue was the only one on trial, and the sole question -raised of which the surrogate had jurisdiction was the construction and validity and consequent effect of the first codicil, •and that involved merely the inquiry whether the bequest of ¡tiie residue to W andell was absolute or m trust, and if in trust, whether it was valid under the law of this state. That question rested upon the terms of the will itself, and had nothing whatever .to do with an alleged extrinsic fraud against which -equity might relieve in a proper case, and all the evidence pointing to that relief was inadmissible and totally immaterial. The General Term was evidently of that opinion, but, after expressing it, passed to some consideration of the evidence under a seeming impression that. this court, in the case of O'Hara, (95 N. Y. 403), had indicated a different doctrine. The learned judge, writing the opinion, said: “ Upon what theory evidence of this kind is admissible, I cannot comprehend. It is a cardinal principle in the construction of the terms of a will that the intention of the testator must be gathered from the will itself, parol proof being only permissible to show the condition of the estate and the surroundings of the testator; and that conversations as to the intention, or even written memoranda, cannot be resorted to for the purpose of sustaining a will which is apparently against the provisions of a statute, much less to destroy a will which upon its face is not in contravention of any statute/’ So far the General Term stated the prevailing rule with substantial accuracy. Its opinion then proceeds thus: “ It is true that evidence of this kind was received in The Matter of O'Hara, and that such evidence was commented on and formed the basis of the judgment of the Court of Appeals in the construction-of that will.” 'That is a mistake, and one so serious that we ought not to allow it to perpetuate itself, even at the expense of explain *79 ing what seems to 11s to need no explanation. In the O’Hara case there was never any question of construction, at all. Hone was raised and none considered, and so the parol evidence received was not admitted or acted upon “ in the construction of that will.” It came in for a different purpose and upon widely different issues. There were two separate appeals, but heard and argued together. Upon the petition for probate of the will, the contestants filed an answer denying its execution and alleging that it was obtained by undue influence. It contained an absolute bequest to three persons, not of kin to the testatrix, but standing in confidential relations to her. The fact furnished ground for an inference of some improper influence exercised over the testatrix, and, to rebut that inference on the one hand and fortify it on the other, all the extrinsic facts, tending to prove or disprove the undue influence, were admissible in evidence and properly received as bearing on that issue. In the case at bar there was no such issue, and so no such ground or reason for the extrinsic proof offered, and to admit it on an issue of undue influence is very far from holding it competent on a question of construction.
The evidence thus offered in the O’Hara case disclosed a secret and illegal trust, to effectuate which the absolute devise and bequest had been made. The contestants thereupon filed a complaint in equity, alleging all the facts, claiming that the devise and bequest in thé hands of the legatees was the product of a fraud upon the testatrix, or upon the law, and seeking relief against that fraud. Of course, all the extrinsic facts became again admissible to establish the fraud alleged, and this court relieved against it by impressing a trust ex maleficio upon the property in the hands of the devisees and legatees for the benefit of the heirs and next of kin. In so doing, we did consider the parol and extrinsic evidence, but in an action in equity and upon an issue of fraud. And- that again is some-tiling very far away from holding such evidence admissible in a Surrogate’s Court upon a mere question of testamentary construction. Uothing of that sort was involved in the case or decided by it.
*80 In the ease at bar, therefore, the extrinsic evidence was not admissible upon the issue of construction, nor to establish a, trust ex maleficio, which was wholly outside of and beyond the jurisdiction of the surrogate. And so we must come back to the real question involved ; whether the will by its terms established any trust, and if so, whether that trust was valid..
We think it very clear that the bequest was absolute to the-legatee and not npon any trust at all. The language of the codicil is as follows: ‘‘ Doubts having arisen as to the validity of the bequests made for charitable purposes in my said will, I hereby modify said will dated February 18, 1889, by making-my friend Townsend Wan dell my residuary devisee and legatee- and hereby request him to carry into effect my wishes,with respect thereto, but this is not to be construed into an absolute-direction on my part, but merely my desire.” The will had made certain charitable bequests, but sure to fail if, as was. probable and as happened, the deceased should not survive for two months after they were made, and that was the basis of the “ doubts ” expressed in the codicil.
It is very evident that the decedent did not intend to die. intestate as to any part of her estate. By her will she devised and bequeathed any residue of her estate to one of the selected charities, and the purpose of the codicil was to carry that, residue certainly and absolutely to Wandell, leaving him in that, event to deal with the charities as he pleased.
It is true that the expression of a wish or a desire may sometimes serve to found a trust or effect a charge, but such expressions are by no means conclusive. We must still examine the will to discover the testamentary intention. (Phillips v. Phil lips, 112 N. Y. 205.) In the present case the testatrix expressly guards against a mistaken interpretation. She says that the-expression of her wish is not to be construed as an absolute direction; by which' she evidently means, that while she desires that her residuary legatee shall deal with the charities as she would have been glad to, yet she does not mean to fetter his ownership or qualify his right. She leaves him absolute owner, and free to do as he shall choose. She puts upon him no obli *81 gation, legal or equitable, but contents herself with the bare expression of a wish which she hopes will influence- his free agency. And so the bequest was absolute, and, therefore, valid on the face of the will. That conclusion disposes of the whole issue raised before the surrogate. It determines the construction of the bequest, declares its validity and consequent legal effect. If there are any extrinsic grounds for impressing a trust ex maleficio in favor of heirs or next of kin upon the bequest thus carried to the residuary legatee, it is sufficient to add that an action for such purpose must be brought in equity where the power resides for granting that relief.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed.