Majority
p. 112Foulks v. Foulks. (Supreme Court, General Term, Second Department. July 2, 1889.) Argued before Barnard, P. J., and Dykman and Pratt, JJ.
Headnote
1. Exbcutobs—Actions foe Legacies.A legatee may maintain an action for money in the hands of the executors, to which the legatee is entitled under the will, and which defendants are about to distribute to other persons, though less than a year has elapsed since the issuance of letters testamentary.
3. Same—Pleading.
The complaint need not allege that plaintiff has demanded his legacy, where it alleges that the executors have refused to pay it to him.
8. Same.
Where it alleges that the will was probated several years before the beginning of the action, it will be inferred that letters testamentary were issued at the same time.
4. Same—Pasties.
The fact that an unnecessary party is made defendant is not ground for demurrer, as the action is in equity.
Appeal from special term, Kings county.
Action by John W. Foulks against Thomas Foulks and others, executors of William Foulks, deceased, and others, for a legacy to which plaintiff was entitled under the will of the decedent. From an interlocutory judgment overruling his demurrer to the complaint, Charles H. Foulks, one of the defendants, appeals.
John Cummins, for appellant. Goodrich, Deady <& Goodrich, for respondent.
Various objections are made to the sufficiency of the complaint. It is said no allegation is made that plaintiff has demanded his legacy. It is alleged that the executors have refused to pay it to him; and a distinct refusal by them to pay may be sufficient to excuse him from making a formal demand. It is objected that there is no allegation that a year has expired since letters were issued to the executors. The allegation is that the will was admitted to probate September 13, 1886, and the summons is dated in 1889.
p. 113
We think it may be inferred that letters were issued to the executors named in the will simultaneously with the probate. Neither of these suggestions is of much importance in view of the allegation that there is in the hands of the executors $16,000 to which plaintiff is entitled under the will, which the executors are about to distribute to other parties. If that be true, the action would be maintainable without regard to the time that has elapsed since the issue of the letters. Plaintiff could not be required to lie by wilhout action, and see his money distributed to other parties, even if it be true that less than a year had elapsed since the issue of letters. It is also objected that defendant Charles H. Poulks, who demurs, is not a necessary party. If that be true, it does not sustain the demurrer. The action is in equity, and joining an unnecessary party does not render the complaint invalid. Judgment affirmed, with costs. All concur.