Chipman v. Montgomery
New York Supreme Court
Appeal from a judgment dismissing the complaint herein, entered upon the trial of this action at the Special Term. This is an action brought to obtain a judicial construction of the will, or wills, of John S. Chipman, deceased. The plaintiffs are some of his heirs at law and next of bin. Some of the plaintiffs are also legatees under the will or wills.
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Appeal from a judgment dismissing the complaint herein, entered upon the trial of this action at the Special Term. This is an action brought to obtain a judicial construction of the will, or wills, of John S. Chipman, deceased. The plaintiffs are some of his heirs at law and next of bin. Some of the plaintiffs are also legatees under the will or wills. The plaintiffs aver that they are in doubt as to the time construction of the wills, and as to the validity of the bequests and devises, and as to the rights of the parties. They pray a judicial construction, and an accounting, and, pending the…
1DissentJames, J.
The jurisdiction of a court of equity, of an action for the construction of a doubtful or disputed clause in a will, is incidental to that over trusts, and exists only where the court is moved on behalf of an executor, or trustee, or cestui que trust, and to insure a correct administration of the powers conferred by the will. (Bailey v. Briggs, 56 N. Y., 407.) Hence, when the will creates no trust estate, or powers in trust over the real estate, one claiming merely as an heir at law cannot maintain such an action. (Post v. Hover, 30 Barb., 312, 324; 33 N. Y., 593, 602.) But if the will does…
2Cases cited22 opinions
- Manice v. . ManiceNew York Court of Appeals · 1871
- Hawley v. JamesCourt for the Trial of Impeachments and Correction of Errors · 1836
- Schettler v. . SmithNew York Court of Appeals · 1869
- Post v. . HoverNew York Court of Appeals · 1865
- Vernon v. . VernonNew York Court of Appeals · 1873
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