Von Meyer v. Lindemann

John G. Lindemann died on the 7th of August, 1884, leaving him surviving a widow and several children. The will was admitted to probate and letters testamentary issued to the *354executrix therein named. It gave all the personal property, after the payment of debts, to his wife, and also gave to her the rents, income and profits of all the residuary estate during her life or so long as she remained his widow, and upon her death or remarriage he gave such residue “to such person or persons as she shall direct and appoint by her last will and testament in case of her death or by instrument under her hand and seal, duly acknowledged, in case of her remarriage.” If she died, or in case of remarriage, without making such appointment, then he gave the “ residuary estate to my children living at my wife’s death or remarriage, whichever event shall first happen and to the issue then living of any of my children who shall then be dead leaving issue, such issue to take collectively the share which their parents would have been entitled to if living.” This action is brought to procure a judgment construing such will. The complaint, after setting out a copy of the will, alleges, among other things, that Helena M. E. Lindemann, the widow, died on or about January 25, 1913, without having remarried, leaving a last will and testament which was duly admitted to probate by the surrogate of the county of New York. A copy of the will of Mrs. Lindemann is not annexed to or made a part of the complaint, nor are any of its provisions set forth, and whether she exercised the power of appointment given to her in the will of her husband is not stated in any way, unless the same is to be inferred from the following allegations: “ That the provisions of the said last will and testament of said John G-. Lindemann, deceased, relating to the residuary estate belonging to him at the time of his death, were not carried into effect by said Helena M. E. Lindemann * * * and the apportionment expressly directed by said last will and testament of said John G-. Lindemann, deceased, to be made of the residue of his estate was not made * * * in her said last will and testament.” The judgment demanded is that the court ascertain and determine the true meaning and construction of the will of John C4. Lindemann. The appellant demurred to the complaint upon the ground, (a) that it did not state facts sufficient to constitute a cause of action; (b) that the court did not have jurisdiction of the subject of the action. After the demurrer *355had been interposed the appellant moved under section 547 of the Code of Civil Procedure for judgment on the pleadings. The motion was denied and the appeal is from that order.

The complaint, in my opinion, does not state a cause of action. There is no allegation in it, or any from which it can fairly be inferred, that Mrs. Lindemann exercised the power of appointment given to her in her husband’s will. If she did not exercise such power, then, upon her death, she never having remarried, all of the property passed to the persons specified in the will of her husband. Under the terms of his will, in default of her exercising the power of appointment, such property upon her death passed to and became vested in his children and their survivors. They are the parties to this action and now hold such property under such devise and have only a legal estate. In that case no trust is involved. It is well settled that there is no inherent power vested in a court of equity in the construction of devises as a distinct and independent branch of jurisdiction, but it exercises its equitable power only as incident to its jurisdiction over trusts. (Mellen v. Mellen, 139 N. Y. 210; Anderson v. Anderson, 112 id. 104.)

In Weed v. Weed (94 N. Y. 246) the court held that “ A devisee who claims a mere legal estate in real property of the testator, where there is no trust, cannot maintain an action for the construction of the devise, but must assert his title by ejectment or other legal action; or if in possession, must await an attack upon it and set up the devise in answer to the hostile claim.”

Adams v. Becker (47 Hun, 65), upon which the respondent principally relies, is clearly distinguishable from this case. There the action was brought to construe a will for the reason that it contained disputed and doubtful devises. Here there is no doubt as to the intention of John Gr. Lindemann. The language used indicates clearly what disposition he desired made of. his property. All of the personal property he gave to his wife. The residuary estate he gave to her for life, or until she remarried, with the power of appointment. If she did not exercise that power, then it passed to his children, or if any of them were dead, leaving issue, the issue to take what the parent would have taken if living.

*356The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, with leave to the plaintiff to serve an amended complaint upon payment of costs in this court and in the court below.

Ingraham, P. J., Dowling and Hotchkiss, JJ., concurred; Laughlin, J., concurred on first ground.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to plaintiff to serve an amended complaint upon payment of costs in this court and in the court below.