ently testator's intention that the lands involved here should be held, owned, and enjoyed as lands under the various estates created therein, until title became absolute, under the terms of the will. While, as we have said, the courts by virtue of the compelling force of some necessity have the power to encroach upon the intention of the testator, in order that the estate may be preserved and the interests of the beneficiaries protected, such power should not be exercised beyond the scope of influence of such necessity. The separation of the life estates from the estates in remainder by estimating the values of the former and paying such values to the life tenants is not required here by the exigencies of the situation. To do so would constitute an unnecessary and therefore unauthorized infringement upon the testator's intention. The payment to the life tenants of the estimated values of their life estates and allowing the residue to accumulate at interest for the benefit of the contingent owners would doubtless accomplish the legal equivalent of holding the entire fund in trust as hereinafter indicated. It is not likely, however, that by the former method the practical equivalent of the latter would be attained. It is within the power of the court, in its discretion, to dispose of the fund in the former method. 16 Cyc. 639 and 616; 30 Cyc. 291; Swain v. Hardin, 64 Ind. 85; Russel v. Russel, 48 Ind. 456; Datesman's Appeal, 127 Pa. 348, 17 Atl. 1086, 1100. Under the special circumstances of this case, however, we do not believe that such discre tion should be exercised. In Ruggles v. Tyson, supra, under facts similar to those involved here, it is expressly held, after a full examination of the decided cases, that the court, in the absence of some overpowering necessity, held not to exist there and not shown to exist here, has no power to direct the separation of the life estate from the estate in remainder by estimating the value of the former, and paying such value to the life tenant. As is said there, such a course would substitute an expectancy for a certainty. The remaindermen here, on the termination of the life estates, the contingency having happened, are entitled, under the will, to the undiminished body of the estate. Likewise, the lands being transformed into money, they are entitled to the undiminished body of the fund. The exigency of the situation loses its force on the conversion of the real estate into personalty. To meet such exigency fully, a separation of the life estates from the estates in remainder is not required. As to whether the remainderman would receive the equivalent of the body of the fund, by the separation of the life estates as indicated, and by allowing interest to accumulate on the residue, is speculative. The problem of handling the fund and its final distribution, while complex, is rendered comparatively simple by keeping in mind the various estates and interests created in the lands by the will. In a general way, the course should be as follows: The costs and expenses of the proceeding should be paid out of the funds, since such costs and expenses are incurred for the benefit of all persons interested therein. A trust thereupon of necessity arises involving the residue of the fund. Such trust should be administered and executed under the guidance and supervision of the court, and in so doing the testator's intent should be carried out as nearly as possible. To that end, the net income should be paid to the widow during her life. If, at the decease of the widow, the sons are living, the net income from one-half of the fund should be paid to each son during the remaining portion of his life. There can be a final distribution of one half the fund on the decease of a son, the widow having theretofore died, and of the other half under like circumstances. On the decease of a son, a child or children having been born alive to him, the widow having theretofore died, distribution of one-half the fund should be to such child or children or their heirs or legatees. On the decease of the other son, under like circumstances, there should be a distribution of the remaining one-half of the fund. On the decease of a son, no child having been born to him, the widow having theretofore died, and the brother surviving, distribution of half of the fund should be to the heirs or legatees of the deceased son, to the heirs or legatees of the widow, and to the surviving son. On the decease of the other son, under like circumstances, distribution should be as aforesaid of the other one-half of the fund, except of course, to his heirs or legatees instead of to him. The decease of a son within the lifetime of the widow would not change the course of distribution from as above indicated; it would simply postpone it until the decease of the widow. general observations are made for the guidance of the court in entering its decree. These The judgment is reversed, with instructions to the court to restate its conclusion of law in harmony with this opinion, and to decree accordingly. OF ATTACK. that a decree admitting to probate a will of real Under Code Civ. Proc. § 2625, providing or personal property, or both, is conclusive as an adjudication of the validity of the will, except in an action in the Supreme Court under section 2653a, providing for determining the validity of a will by jury trial in the Supreme Court, next of kin cannot have partition as provided for by section 1537, unless he attacks the validity of the probate under section 2653a. [Ed. Note.-For other cases, see Wills, Cent. Dig. § 919; Dec. Dig. 430.] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Appeal from Supreme Court, Appellate Di- Until the amendment made to the Code by vision, Fourth Department. chapter 578 of the Laws of 1910, a decree adAction by Zouve J. Wadsworth and oth-mitting to probate a will of real property esers against E. Elizabeth Hinchcliff and oth- tablished presumptively only the matters de ers. From a judgment of the Appellate Di-termined by the surrogate. Section 2627 of vision (163 App. Div. 266, 148 N. Y. Supp. 798), affirming judgment of the Trial Term dismissing the complaint, plaintiffs appeal. Affirmed. Henry F. & James Coupe, of Utica, for appellants. William A. Matteson, of Utica, for respondent Hinchcliff. George E. Dennison, of Utica, for respondents Mather and Comstock, executors. Code of 1909; Hoyt v. Hoyt, 112 N. Y. 493, 504, 29 N. E. 402. Under the statutes as they stood prior to the amendments of 1910, it was competent for a party in an action for partition of real property, brought under section 1537, to attack the validity of a will even though it had been already admitted to probate in the Surrogate's Court. By chapter 578 of the Laws of 1910 the Code was so amended that sections 2626 and 2627 of the Code of 1909 were expressly repealed and section 2625 of the Code was adopted. Section 2625 as it stood in 1913 provided as fol lows: "A decree admitting a will of real or personal property, or both, to probate, is conclusive as an adjudication of the validity of the will, 2624 of this act, except as in this chapter othand of the question determined under section The exception referred to in the last line SEABURY, J. This action was brought to partition real estate and to set aside the last will and testament of Frank G. Wadsworth, deceased. The testator died April 10, 1913, seised of real estate. In 1912 he made his last will under the provisions of which, after providing for certain legacies, he gave all the residue of his property, real and per-erwise provided." sonal, to E. Elizabeth Hinchcliff, and appointed Louis R. Mather and Willard G. Comstock executors. Proceedings were insti- of this section relates to section 2653a of tuted for the probate of said will before the the Code which permits a party to bring an surrogate of Oneida county. The plaintiffs action under that section to set aside a will in this action filed answers in the Surrogate's and confers upon such party the right to a Court objecting to the probate of said will jury trial in the Supreme Court in that acon the ground of want of capacity, undue in- tion. Under the statute as amended the defluence, and fraud. After a hearing duly had cree of the surrogate admitting the will to a decree was made by the surrogate over- probate is conclusive, whether the will deals ruling the objections set up in the answer with real or personal property, except that and admitting said will to probate. This de- in either case the issue as to the validity of cree was made June 30, 1913. On August 13, the will could have been tried in an action 1913, the present action was commenced. under section 2653a of the Code, as that sec-. The plaintiffs are the next of kin of the tes- tion stood at the time this controversy arose. The complaint alleges that the writ-In effecting this change in the law the Legising admitted to probate is not the last will lature endeavored to simplify the practice and testament of the testator and alleges relating to the probate of wills, and to prethat the testator was of unsound mind. The vent the confusion that had arisen under the trial court held that section 2625 of the Code former practice by reason of rehearings. Matmade the decree of the Surrogate's Court ad- ter of Fischer, 153 App. Div. 603, 138 N. Y. mitting the will to probate conclusive, and Supp. 917; Bowen v. Sweeney, 89 Hun, 359, that, therefore, the plaintiffs could not suc- 363, 35 N. Y. Supp. 400. ceed in their action for a partition of the real estate. The trial court, however, offered to allow the plaintiffs to amend their complaint so as to bring the action within section 2653a of the Code and to permit the plaintiffs to proceed under that section. The plaintiffs refused to avail themselves of the permission to amend the complaint granted by the trial justice, and insisted upon their right to maintain the action as an action for partition. The trial court thereupon dismissed the complaint. The action of the trial court in dismissing the complaint was affirmed at the Appellate Division. Prior to the amendment of the statute in 1910, a decree admitting to probate a will of personal property was conclusive as an adpersonal property was conclusive as an adjudication upon all questions determined except in an action brought under section 2653a, to determine the validity or invalidity The plaintiffs claim the right to maintain the action in partition under section 1537 of the Code with the right to establish that, at the time the apparent devise in said will and the apparent grant in said deed were made, the deceased was of unsound mind, and mentally incapable of making a will or deed, and that the pretended execution of the same were obtained by fraud, coercion, and undue influence, and are void. Section 1537 of the Code provides as follows: "A person claiming to be entitled, as a joint his being an heir of a person who died, holding tenant or a tenant in common, by reason of and in possession of real property, may maintain an action for the partition thereof, whether he is in or out of possession, notwithstanding an apparent devise thereof to another by the decedent, and possession under such a devise. But in such an action, the plaintiff must allege and establish that the apparent devise is void." In so far as the plaintiffs seek to attack Court admitting the will to probate, they, paired, but the validity of a will which has could, as the statute stood when this action been admitted to probate by the Surrogate's was commenced, do so only in an action contemplated by section 2653a. That section expressly provides for determining the validity of the will by a trial by jury in the Supreme Court. The method thus prescribed is exclusive. If the parties do not avail themselves of the method sanctioned by law, they cannot complain that the decree of the surrogate is conclusive. In discussing this question at the Appellate Division, Mr. Presiding Justice Kruse said: "If parties neglect to avail themselves of that remedy (section 2653a), I do not see how it can be justly said that the Legislature has failed to preserve the right of trial by jury. If an heir at law desires to challenge the effect of a decree of the Surrogate's Court admitting the will to probate, I think he must resort to an action under section 2653a, otherwise he is concluded." Court is not open to attack in such an action. Under Before the enactment of this last-men tioned statute and since the amendment of 1910 the right to a jury trial in cases where it was sanctioned by law was recognized, but such a trial could only be had in an acIn thus determining the case, the learned tion brought under section 2653a of the Code. court below did so on the assumption and der section 2653a, and the plaintiffs having The present action not being brought unwithout so deciding that the constitutional refused the opportunity to amend their comright of trial by jury applies to a judicial plaint so that an action of this character contest by an heir at law of an apparent de-plaint might be brought, the complaint was propervise of real estate. Upon the assumption uply dismissed. on which the court below discussed the case, we think the conclusion reached that an heir at law is limited to attacking the effect of the surrogate's decree to an action under section 2653a is correct. The decree of the surrogate admitting the will to probate is expressly declared by section 2625 of the Code of Civil Procedure to be conclusive except as otherwise provided in that chapter of the Code. Section 2653a is included in the same chapter and provides for determining the validity of the will in an action in the Supreme Court and authorizes a jury trial in such an action. The present action is not such an action as is contemplated by section 2653a of the Code. If the decree of the surrogate admitting the will to probate is conclusive upon the question of the validity of the will it becomes immaterial whether the deed is void or not, since under the will the plaintiffs cannot take title to the property as heirs at law. The decree of the surrogate admitting the will to probate was conclusive, except in so far as it was subject to attack under section 2653a. That section prescribed the only method sanctioned by law in which the plaintiffs could challenge that decree and try the issues raised in reference to it before a jury. In prescribing a method by which a jury trial might be obtained, any right to such a trial which the plaintiffs may have had was fully recognized. They could not refuse to avail themselves of the method sanctioned by law in which the issues in reference to the validity of the will could be tried by a jury and at the same time complain that they were denied the right to a trial by jury. Under this construction the right to a jury trial in an action of partition brought under section 1537 of the Code is in no way im It follows that the judgment appealed from should be affirmed, with costs. WILLARD BARTLETT, C. J., and HISCOCK, COLLIN, CUDDEBACK, HOGAN, and POUND, JJ., concur. Judgment affirmed. (218 N. Y. 737) SPITZER v. HEALY et al. (Court of Appeals of New York. July 11, 1916.) 1. APPEAL AND ERROR 1083(1)-DECISIONS REVIEWABLE DECISION OF INTERMEDIATE COURT-LAW OR FACT. The Court of Appeals cannot review an Appellate Division order, made prior to September 1, 1914, when the amendment to Code Civ. Proc. § 1346, took effect, reversing a judgment shows whether the reversal was upon the law or for plaintiff and ordering a new trial, unless it facts, or whether the facts as found by the verdict were approved. [Ed. Note.-For other cases, see Appeal and Dec. Dig. 1083(1).] Error. Cent. Dig. $$ 4273-4277, 4345, 4346; 2. APPEAL AND ERROR 2-CONSTRUCTION OF STATUTE-RETROACTIVE OPERATION. Code Civ. Proc. § 1346, effective September 1, 1914, providing that appeals may be taken to the Appellate Division upon questions of law or fact or both, does not apply to Appellate Division judgments rendered prior to that date. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3-7, 1882, 2421; Dec. Dig. 2.] Appeal from Supreme Court, Appellate Division, First Department. Action by Flora Spitzer, as administratrix of estate of Joseph Spitzer, deceased, against A. Augustus Healy and others. From an order of the Appellate Division (159 App. Div. 505, 144 N. Y. Supp. 828), reversing a judgment for plaintiff and granting a new trial, she appeals. Appeal dismissed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 671-CONSTRUCTION-NATURE OF ESTATE CREATED. Moses Feltenstein and Morris Cukor, both | 2. WILLS PER CURIAM. This action was brought to recover damages by reason of the death of plaintiff's intestate resulting, as alleged, from the negligence of defendants. Upon the trial the plaintiff recovered a verdict. Defendants moved to set aside the verdict and for a new trial, upon the several grounds enumerated in section 999, Code of Civil Procedure, which motion was denied and an exception granted defendants. From the judgment entered upon the verdict of the jury, and the order denying the motion made for a new trial and to set aside the verdict, defendants took an appeal to the Appellate Division. The latter court on the 19th of December, 1913, made an order in the following language: "Ordered and adjudged that the judgment and order so appealed from be and the same are hereby reversed and a new trial granted, with costs to the appellant to abide the event." [1, 2] The order of reversal does not state whether the reversal was upon the law or upon the facts, or whether the facts as found by the verdict. were affirmed or approved by the court. It follows that this court has no jurisdiction to review the order appealed from. Schryer v. Fenton, 162 N. Y. 444, 56 N. E. 997. While the amendment to section 1346 of the Code, which took effect September 1, 1914, has effected a change in the practice theretofore existing, such amendment does not apply to judgments of the Appellate Division rendered as was the judgment in question prior to September 1, 1914. Middleton v. Whitridge, 213 N. Y. 499, 505, 108 N. E. 192. The only remedy of plaintiff is a new trial pursuant to the order of the Appellate Division. The appeal must be dismissed, with costs. WILLARD BARTLETT, C. J., and HISCOCK, COLLIN, CUDDEBACK, HOGAN, SEABURY, and POUND, JJ., concur. Appeal dismissed. (218 N. Y. 513) In re LEONARD. MAJOR et al. v. LEONARD et al. In re McCAHILL'S WILL. (Court of Appeals of New York. July 11, 1916.) 1. WILLS 671-CONSTRUCTION-NATURE OF ESTATE CREATED. essential to the creation of a trust by will, but Dig. §§ 1577, 1578, 1586; Dec. Dig. 671.] 3. WILLS 524(6)-CONSTRUCTION-NATURE OF ESTATE CREATED. Under a will bequeathing to a niece a share of the estate for life, the same upon her death without issue to be divided among her brothers and sisters, or, should she leave surviving no brothers or sisters, then her share to revert to the general fund of the estate, to be divided equally among the remaining nephews and nieces of testator, upon the death of such niece without issue, brothers, or sisters, her share went to the nephews and nieces of testator living at the time of her decease. [Ed. Note.-For other cases, see Wills, Cent. Dig. § 1122; Dec. Dig. 524(6).] 4. JUDGMENT . 735-CONCLUSIVENESS-CONSTRUCTION OF WILL-BURDEN OF SHOWING. Judgment in a proceeding by executors, asking for instructions as to the distribution of the estate, in which the construction of a particular clause does not appear to have been determined, held not a prior adjudication of the distribution of the share of one of such heirs, who has since died intestate, under the rule that the burden of showing prior adjudication rests on the party claiming it. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 1263, 1265; Dec. Dig. 735.] Appeal from Supreme Court, Appellate Division, First Department. Proceeding for the distribution of a share of the estate of Bryan McCahill, deceased. From an order of the Appellate Division (168 App. Div. 12, 153 N. Y. Supp. 852), modifying a decree of the surrogate, construing the will of said deceased and directing distribution, Katherine Major and others appeal. Affirmed. Charles Meyers, of New York City, for appellants. Frederic N. Gilbert, of New York City, for respondents Leonard and others. Albert Ritchie, of New York City, for respondent McCahill. HISCOCK, J. Bryan McCahill died, leaving him surviving a widow, no children, or descendants of children, and 16 nephews and nieces. He left a will which, in addition to making certain specific bequests, contained clauses which are of varying importance in the disposition of the questions presented on this appeal. One of these provided as follows: "Second. I give and bequeath unto my wife Bridget McCahill the house and lot owned by A will directing the conversion of the estate me known as number one hundred and forty-five into money and the payment and distribution East Forty-Ninth street, in the city of New thereof among certain persons, but directing York, together with all the household furniture, that only the interest on certain shares shall be *** during the natural life of said Bridget paid to them during life, and upon their death McCahill, and on her decease the proceeds aristhat the principal shall be divided among desig-ing on the sale of said house and furniture to nated persons creates a trust for life, and does be divided equally between my nephews and not vest an absolute estate in such legatees. nieces hereinafter named, the survivor or sur[Ed. Note. For other cases, see Wills, Cent. vivors of them. I also give and bequeath to Dig. §§ 1577, 1578, 1586; Dec. Dig. 671.] my wife Bridget McCahill an annuity of one thousand two hundred dollars per annum to be rond, whether such disposition is now conpaid by my executors, quarter-yearly in ad- trolled either by two decrees in Surrogate's vance commencing at my decease." The ninth clause provided: "I give, devise and bequeath to my executors and survivor or survivors of them, the sum of fifteen hundred dollars per annum during the lifetime of my executors James Brady and Thomas J. McCahill and the survivor of them, in trust nevertheless for them to pay for the education of young men who wish to study for the Catholic priesthood, such young men to be selected by my executors." The eleventh clause, most important of all, provided: Court or a judgment of the Supreme Court as binding adjudications, even though we should disagree with the conclusions embodied in said decrees or judgment. [1] Taking up these questions in the order stated, the first inquiry is as to the nature of the interest which Annie McMahon took in the share created for her benefit by said clause, it being urged by some of the appellants that she took an absolute and unqualified interest which permitted her to dispose "Immediately after my decease, I direct that of the same by will, while other parties inall my real and personal estate be sold at pub- sist that her only interest was under a trust lic auction by my executors hereinafter named of the share which directed the interest thereand after paying the legacies above mentioned, of to be paid to her for life. We do not think the proceeds thereof be divided equally between that there can be any serious dispute over my nephews and nieces, etc., Ellen McCahill and Mary McCahill, the children of my brother this question. While the first words of the James, deceased; Mary McMahon, Kate McMa- eleventh clause do by themselves import a hon, Margaret McMahon, Philip McMahon, Jr., division amongst the nephews and nieces, inAnnie McMahon and Ellen McMahon, children of my sister Margaret McMahon; Thomas J. cluding Annie McMahon, of shares with abMcCahill, Margaret T. Mullane, Bernard F. Mc- solute ownership, these words are so intiCahill, Terrence J. McCahill and Ellen McCa- mately connected with subsequent ones aphill, children of my brother Terrence, deceased; plicable to the cases of the nieces that all James Brady and Terrence Bradv, children of my sister Rose Brady; James McCahill, son are to be considered as a single provision in of my brother Patrick, deceased, in equal shares, determining the interest taken by a niece, share and share alike. My nephew Terrence and there is no opportunity for the applicaBrady, being now absent and should he remain so absent for the next five years his share is tion of the rule which declares that, where to go to his brother James Brady. The shares, an absolute estate has been given under one however, of my nieces, Ellen McCahill, now complete provision of a will, it will not be Ellen Leonard; Mary McCahill, now Mary Cur tin, Mary McMahon, now Mary Dorian; Kate regarded as cut down by another and subMcMahon, Margaret McMahon, Annie McMa- sequent one unless the intent so to do is very hon and Ellen McMahon, I direct my executors clear. Here there is not one provision givto invest in bond and mortgage, and the interest thereon of the several shares to be paid them ing an absolute estate and another one pursemi-annually, and in case of any of the above porting to cut it down, but various directions named nieces dying without issue, then her share embraced in the same clause, and all of shall be divided equally among her brothers which are to be construed together as one and sisters, and in case of the death of any of them leaving issue, the interest on her share provision in determining the interest of a shall be divided equally between her said chil- niece. Thus construed we have no hesitation dren, and upon their attaining the age of twen- in determining that the provision for the ty-one years the principal shall in the same various nieces named in this clause did not manner be divided equally between them. Should any of my nieces, however, die without leaving issue or brothers or sisters, then her share is to revert to the general fund of my estate, to be divided equally among my remaining nephews and nieces. I direct, and it is my will, however, that my nephew, Bryan McCahill, shall not receive any share of my estate, real or personal, at my decease, he having already received what I consider his just share of the same." After the death of the widow, one of the 7 nieces mentioned in the will, Annie McMahon, died leaving her surviving no issue or brothers or sisters, but leaving her surviving descendants of brothers and sisters who had died after the testator, and certain of the 16 nephews and nieces mentioned in the testator's will, and also issue of some of said nephews and nieces respectively who had died intermediate the deaths of the testator and of said Annie McMahon. Under these conditions the two questions are presented: First, as to the disposition of the share created for the benefit of said Annie McMahon under the eleventh clause of her uncle's will as an original and open question; and, sec give them an absolute interest in the shares created for them respectively, but simply created trusts for life with the principal to be disposed of at death as in said clause provided. [2] It is true that the specific word "trust" is not employed in dealing with these shares, but it has often been said that this is not essential to the creation of a trust, and that the question whether a trust has been created by a given provision or not is to be determined by a consideration of the substance of such provision and of the steps and duties which are imposed thereby. When we apply this test to the clause in question, it is very evident that the share of Annie McMahon was bequeathed to the persons designated as executors, in trust to hold and invest and pay the income to the beneficiary during life. [3] Adopting this theory, we then come to a more difficult question involving the disposition of said share on the death of said life beneficiary. Both the surrogate and the Appellate Division took the view, with which |