Weston v. Stoddard. tional allowance of five per cent on the one fourth, namely, $2500, being the value of the property in dispute; and that such five per cent be also chargeable upon the said interest of Mary R. Stoddard, and shall be paid by her and be a lien upon the property allotted to her. I have further determined that the defendant, Mary R. Stoddard, is entitled to her costs of the trial before Justice Putnam, to be taxed by the clerk of the said county, and that an additional allowance there should be paid to her of two per cent on the value of the said interest involved, to wit, $2500, and the same be chargeable against the owners of the said one-fourth interest in the said property and shall be paid by them, and at the election of the said Mary R. Stoddard the same may be offset against any costs herein allowed against her. From so much of the order entered on this decision as allowed the defendant costs the plaintiff appealed to the general term of the supreme court in the third department. Winsor B. French, for plaintiff, appellant. Charles S. Lester, for defendant, respondent. LEARNED, P.J.—The action of partition has long been an equitable remedy (1 Story's Eq., § 646, and subsequent sections). There was also a special proceeding provided for by the Revised Statutes, which might be taken in courts of law. But that left, in express language, the jurisdiction of the court of chancery unaffected. Such an action is not within section 968 or section 3228. It is governed by section 3230, and costs are in the discretion of the court. An issue of fact in the action is triable by a jury (§ 1544). But that does not determine that the action is so triable or bring the action within section 3228, subdivision 1. In re Will of Schrader. The right to award costs to plaintiff and to defendant was recognized in Henderson v. Scott, 43 Hun, 22, and this must overcome the special term decision of Davis v. Davis, 3 St. Rep. 163. We think, therefore, that the matter was in the discretion of the special term. And there is no question that the discretion was not properly exercised. Order affirmed, with ten dollars costs and printing disbursements. MAYHAM, J., Concurred. In re PROBATE OF THE WILL OF CORNELIA L. SUPREME COURT, FIFTH DEPARTMENT, GENERAL TERM; JANUARY, 1892. $ 2624. Surrogate's court-jurisdiction of, to construe will. The surrogate's court can exercise only those powers which are given to it by statute and such incidental powers as are required in the proper exercise of the powers expressly conferred; and unless a warrant for the exercise of its jurisdiction of a particular case can be found in the statute either expressly or by necessary implication, any judgment pronounced by it is void. [2] Until the enactment of section 2624 of the Code of Civil Procedure the surrogate's court had no power on the probate of a will to determine the validity of any of its provisions or make any decree thereon, except either to admit it to or reject it from probate, save only under a separate statute relating exclusively to the surrogate's court of the county of New York. [3] The jurisdiction of the surrogate court to make a construction of a will or pass upon the validity or effect of any part thereof In re Will of Schrader. is confined to "any disposition of personal property" made thereby. [4] Where the disposition of personal and of real property made by a will or a clause thereof are essentially connected and not separable, and there is no disposition of personal property except as it is connected with the disposing of real estate, the surrogate has no jurisdiction to make a construction of the will or pass upon the validity of any of its parts. [1, 5] (Decided January, 1892.) Appeal by J. Albert Schrader and Edward V. Schrader, next-to-kin and heirs-at-law of the decedent and legatees named in her will, from such parts of a decree of the surrogate court of Cayuga county admitting her will to probate as construed by the same. The facts are stated in the opinion. Teller & Hunt, for legatees, appellants. C. G. Baldwin, for executors, respondents. MACOMBER, J.-No question arises upon this appeal touching the sufficiency and proof of the will and of the disposing mind of the testatrix. The appellants at the time of the return of the citation filed an answer which put in issue the validity, construction, and effect of certain portions of the will, and went to trial thereon before the surrogate. Section 2624 of the Code of Civil Procedure provides as follows: "But if a party expressly puts in issue before the surrogate the validity, construction, or effect of any disposition of personal property contained in the will of a resident of the state, executed within the state, the surrogate must determine the question upon rendering a decree, unless the decree refuses to admit the will to probate by reason of a failure to prove any of the matters specified in the last section." The surrogate has, by rejecting or ignoring the sec In re Will of Schrader. ond provision of the will, made a construction which the appellants deemed to be unfavorable to them. [1] The first section of the will devised all of the property of the testatrix in this state, both real and personal, to trustees, under a trust for the payment of the rents and profits and interest to the appellants, who were her children, with a provision for the final payment of the principal over to them. The second item of the will was to the effect that if any of the testatrix's heirs should die, leaving a wife and children, and if, in the judgment of the trustees, the portion of the estate was "needed more for the maintenance and support of the other heir or heirs of my body, or their legal representatives, then my trustees shall retain the same in trust, as under firstly, or pay over the same to such heir or heirs, as hereinbefore stated, otherwise to be administered as under firstly of this instrument." By the third item it was provided that if her children "die leaving no heirs, then all my property and estate, both real and personal, shall be divided, share and share alike, to my surviving brothers and sisters, or their legal representatives." By the fourth provision she appointed two trustees of the will, namely, her sister, Mary C. Hale, and her brother, William Seward Hale. Mary C. Hale having died, William Seward Hale is the surviving executor and trustee under the will. Without construing or determining the effect of these several provisions of the will in question, we are of the opinion that the surrogate did not have jurisdic[2] tion to make any construction of the will, or to declare any provision thereof valid or invalid. The surrogate's court is one of well-defined and limited, although of extensive jurisdiction. It can exercise only those powers which are given to it by statute and such incidental powers as are required to the proper exercise of the powers expressly conferred. Unless, therefore, a warrant for the exercise of its jurisdiction of the particu In re Will of Schrader. lar case can be found in the statute, either expressly or by necessary implication, any judgment pronounced by that tribunal is void (Riggs v. Cragg, 89 N. Y. 479; Seaman v. Whitehead, 78 Id. 308). [3] Until the enactment of this section of the Code of Civil Procedure the surrogate's court had no power, on the probate of a will, to determine the validity of any of the provisions of the will, or to make any decree thereon, except either to admit it to or reject it from probate, save only that a special statute relating only to the surrogate's court of the county of New York (chapter 359 of the Laws of 1870), conferred such power. The will before us is one of both real and personal property. The deceased, at the time of her death, owned a house and lot in Union Springs, in New York, and an interest in other real estate in the town of Elbridge, New York. Her personal property amounted to about $3000. It does not appear whether the personal [4] [5] estate would or would not be sufficient to pay her debts. The jurisdiction of the surrogate, at the time the will was offered to probate, to make any construction thereof, or to pass upon the validity or cffect of any part thereof, is confined to "any disposition of personal property." In this case there is no disposition of personal property, except as it is connected with the disposition of the real estate of the testatrix. It would be impossible to separate the disposition of the personal property from that made of the real estate. They are essentially connected, and not separable. The surrogate himself finds that the will is one of both real and personal property, and he attempts to make no restriction of his construction, so as to confine it to the disposition made of the personal property alone. But we are of the opinion, under this section of the Code, and under the common-law limitation of the power of the surrogate's court, that the sur |