Early v. Nash — 139 A.D. 736

Majority

p. 736

Annie Early, Appellant, v. John McL. Nash, as Executor, etc., of Mary A. Fielding, Deceased, and Others, Respondents.

Second Department,

July 29, 1910.

Headnote

Party—will — action to test validity of codicils — necessary parties— pleading— complaint — allegations as to parties made defendants.

Persons given general and specific legacies in a will are necessary parties to an action contesting the validity of codicils to the will which, by making another specific devise, take property out of the residuary estate and place the devise on an equality with the former specific legacies, and place a general legacy in the codicil on an equality with the legacy in the will.

This, because the general and spécific legatees named in the will have interests to protect which give them a standing to attack the validity of the codicils; and because the expenses of the litigation may so diminish the assets applicable to the payment of debts as to require the sale of the subjects of the special legacies.

In an action under section 3653a of the Code of Civil Procedure all persons must be brought in as parties to whom the will and the law impute an interest, and all other persons who in fact have interests, to the end that one comprehensive judgment may determine and forever quiet dispute and' title. Thus legatees should be made parties as well as omitted heirs at law.

A complaint under section 3653a of the Code of Civil Procedure does not state a cause of action if it fail to allege that all interested persons have been made parties as required by the statute.

Appeal by the plaintiff, Annie Early, from ’ an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 22d day of January, 1910, denying the plaintiff’s motion for judgment on the pleadings.

Alvin C. Cass, for the appellant.

' Charles L. Jones [Stephen P. Nash with him on the brief], for the respondents.

The testatrix, a widow, died leaving a will and four codicils thereto, and three daughters and three sons, to whom, save two of the sons, she gave her property, excepting one general legacy of $5jD0 to Mnnro, and several specific legacies to grandchildren and a niece..

p. 737

In this action, attacking the validity of the last two codicils, the two sons excluded from the will, Munro and such special legatees are not made parties. The questions are whether there is a defect. of parties defendant and a failure to state a cause of action. The 1st and 2d codicils do not materially 'affect the question. The 3d codicil makes a specific devise to a daughter and a general legacy to another daughter, and the 4th codicil gives the son a general legacy and declares that certain advances to children have been repaid. The specific devise removes property from the residuary estate, and, as regards payment of debts, places it on an equality with the specific legacies to the granchildren and niece, and the general legacies in the codicils are coequal with Munro’s legacy. Hence, Munro and the special legatees have interests to protect that give them standing to attack the validity of the codicils. Moreover, a litigation is initiated, the expenses of which may so diminish the assets first applicable to the payment of debts as. finally to require the sale of the subjects of the special legacies (Stall v. Wilbur, 77 N. Y. 158 ), and the special legatees should be summoned and enabled to protect their interests. If it be answered that the peril is remote or absent, it is sufficient reply that the court is not and cannot be informed as to the debts and the adequacy of the assets. Mor does the statute intend that the court -shall scan the present condition of the estate or forecast its vicissitudes. Section 2653a of the Code provides that “All the devisees, legatees and heirs of the testator and other interested persons, including the executor or administrator, must be parties to the action.” The intention is to herald to one final contention all to whom the will and. law impute interests, and all other persons who in fact have interests, to the end that one comprehensive judgment may determine all rights and forever quiet dispute and title. (Lewis v. Code, 150 N. Y. 163 , 166; Brinkerhoff v. Tiernan, 61 Misc. Rep. 586 , 588.) So all the legatees should be made parties, as well as the omitted heirs at law. The demurrer further is that the complaint does not state a cause of action in that 'it does not allege that all interested persons are parties to the action. As the statute directs this for the purpose of estopping all persons interested, the plaintiff should plead and prove that she has brought such persons '

p. 738

before the court for judgment. 'Otherwise some defendant must take that burden, and in case of default in appearance the court would not be advised. ( Wood v. Fagan, 126 App. Div. 581 .)

The order should be affirmed, with ten dollars costs and disbursements.

Hirschberg, P. J., Woodward, Jenks and Burr, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.

Cases cited

Stall v. Wilbur 77 N. Y. 158 N.Y. 1879-04-25 p. 737
Lewis v. Cook 150 N. Y. 163 N.Y. 1896-10-06 at 166 p. 737
Brinkerhoff v. Tiernan 61 Misc. Rep. 586 N.Y. Sup. Ct. 1908-12-21 at 588 p. 737