Majority
p. 585Amanda A. Evans, as Executrix of and Trustee under the Will of Jacob Appell, Deceased, Appellant, v. Albert J. Appell, Individually and as Executor of and Trustee under the Will of Jacob Appell, Deceased, et al., Respondents. (Argued February 24, 1925; decided March 5, 1925.)
Headnote
Executors and administrators — decedent’s estate —■ executrix may not maintain action for partition in her representative capacity ■— complaint in action for construction of will dismissed on ground that such construction might he had in Surrogate’s Court upon accounting.Evans v. Appell, 211 App. Div. 105 , affirmed.
Appeal from a judgment, entered December 24, 1924, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which reversed an order of Special Term denying a motion for a dismissal of the complaint and granted said motion. Plaintiff in her prayer for relief asked for a construction of the will of Jacob Appell, deceased, and a partition and sale of the real and personal property left by the testator, and the appointment of a receiver of said property. The Appellate Division held that plaintiff could not maintain an action for partition of real estate in her representative capacity and that the will might be construed if necessary upon the accounting in Surrogate’s Court, thus avoiding a multiplicity of suits.
Benjamin E. Messler for appellant.
Frank C. Laughlin, Joseph W. Kirkpatrick and Albert J. Appell for respondents.
p. 586
Judgment affirmed, with costs; no opinion.
Concur: Hiscock, Ch. J., Caedozo, ■ Pound, Ceane, Andrews and Lehman, JJ. Absent: McLaughlin, J.