GABRYSZAK v. GABRYSZAK et al.(Supreme Court, Equity Term, Erie County.Headnote
1. Parties (§ 75*)—Complaint—Want oe Necessary Parties—Demurrer.A complaint, disclosing on its face the interest of a person not made a party, is demurrable.
[Ed. Note.—For other cases, see Parties, Cent. Dig. §§ 115, 116, 167; Dec. Dig. § 75.*]
2. Executors and Administrators (§ 81*)—Trusts—Obligation oe Executor.
Where a will devised property in trust, without creating a trust other than that imposed on an executor, the executor, named trustee, must proceed in the usual manner to pay debts and make distribution of the estate as directed.
[Ed. Note.—Por other cases, see Executors and Administrators, Cent. Dig. §§ 323, 334; Dec. Dig. § 81.*]
‘For other cases see"same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
Action by Matthew Gabryszak against Eelix J. Gabryszak and others.
Demurrer to complaint sustained.
Leon J. Nowak, for plaintiff.
William L. Jones, for defendants.
[1] The demurrer is sustained, on the grounds that Marcella M., a daughter and devisee under the will of the mother of the parties to this action, is not a party, although her interest appears on the face of the complaint; also, that the complaint does not state facts sufficient to constitute a cause of action".
[2] The will is quite simple, devising the property equally to the named children of deceased. In terms, it devises the property to a son, in trust for the children; but no trust is created other than that imposed upon an executor with the powers granted here, and, there being no duties devolving upon the trustee as such, the executor (who is also the trustee named) is called upon to proceed in the usual manner to pay the debts, if any, and make distribution of the estate as directed.