Hewitt v. Hewitt

Headnote

Equity—Jurisdiction—Adequate Remedy at Law.

A complaint in equity, by executors and trustees against the widow of their testator, alleged that defendant had converted to her own use property of the testator-in the state of Arkansas, under claim that testator was a resident of that state at. his death, and that she was entitled to the property, under the laws of that state. The prayer of the complaint was that the will of testator be established as the will of a resident of New York, and that defendant be decreed to pay plaintiffs the amount of property taken, and that she be enjoined from further interfering with plaintiffs in the execution of their trust. Held that, on the facts alleged, plaintiffs have no cause in equity; their remedy being adequate in an action at law.

Appeal from special term, Clinton county.

Action by Henry N. Hewitt and Nathan T. Hewitt, individually, and as-executors and trustees under the will of Nelson G. Hewitt, deceased, against Laura S. Hewitt, .John P. Hewitt, Louisa Hewitt, and Ann E. Calkins. The complaint alleges that Nelson G. Hewitt died in the county of Clinton, in this state, February 6,1887, without issue, leaving the defendant LauraS. Hewitt, his widow, surviving him; that the said testator was at the time of his death a resident of, and domiciled in, said county, and had been such resident, so-domiciled, for many years previous thereto; that about December 28, 1886, he made Ins last will and testament, and codicils thereto, whereby he devised and bequeathed all his real and personal estate to the plaintiffs, in trust, to pay over to his said widow, in quarterly payments, one-half of the annual net income of his said estate, not exceeding $2,400 per annum, during her life, and the balance of said annual net income to divide into four parts, and pay over-annually one of said parts to the defendant John P. Hewitt, one of said parts to the defendant Ann E. Calkins, one of said parts to the defendant Louisa Hewitt, and one of said parts to the plaintiff Henry N. Hewitt, and, after the decease of said Laura S. Hewitt, to con vert all said estate into money, and to divide and distribute three-fourths of the same among the persons entitled, at the date of said will, to the same, under the statute of distribution of the state of New'York, excepting the defendant John P. Hewitt, and loin vest the remaining one-fourtli, and pay over the income of the same to said

last-named defendant during his life, and at his death to divide said one-quarter among the persons aforesaid, entitled to take under said statute of distribution of this state; that the plaintiffs are nominated in said will as executors thereof; that said will was proven and admitted to probate, all of the,defendants being duly cited, in the surrogate’s court, Clinton county, in this state, and letters testamentary have been issued to the plaintiffs; and that they have qualified, and entered upon the execution of their trust; that at the time of his death said testator was seised and possessed of considerable real and personal property in the state of Arkansas, and was also possessed of considerable personal property, notes, bonds, and instruments for the payment of money only, their being with him in said county of Clinton. Plaintiffs also allege, upon information and belief, that said will has been duly probated in the courts of the state •of Arkansas; that, by the laws of that state, plaintiffs may sue with the like effect as if they had been qualified under the laws thereof; that the plaintiffs have sent a promissory note, made by one Ward, amounting to about $7,000, into that state, to be collected for the purposes of their trust; that the defendant the widow of said testator has since his death, and since the plaintiffs have qualified and entered upon the execution of their trust, interfered with said personal estate of said deceased in the state of Arkansas, and received and taken about $500 of the same, and brought it into this state, where she uses and disposes of the same to her sole benefit, and has also claimed to have and dispose of for her own benefit the whole or a part of said Ward note of $7,000, and also claims, by and under the laws of said state of Arkansas, to have and take to her own use one-half of the entire personal property of the said testator, irrespective of the rights of these plaintiffs as executors and trustees; that the other defendants, the beneficiaries under said will, claim that the said will is the will of a resident of the state of Yew York, and that it is to be construed and interpreted as such, and that plaintiffs are accountable to them for said personal property, and that these plaintiffs should not yield to the claim of the said widow, that said testator was a resident of the state of Arkansas. Plaintiffs ask judgment of the court establishing said will as the will of a resident or non-resident of the state of Yew York, so that their duty in the premises may be determined; that, if the said will be determined to be the will of a resident of this state, the said defendant the said widow be decreed to pay the plaintiffs such amount of money or other personal property as she may have taken from said estate belonging to plaintiffs, and be enjoined from further interfering with the execution of their trust, and for such further relief as may be just, with costs. Said widow demurs to the complaint, and states in her demurrer, as grounds thereof—First. That the complaint does not state facts sufficient to constitute a cause of action. Second. That causes of action have been improperly united. “These plaintiffs should not have been joined in their individual capacity as plaintiffs with themselves in their capacity as executors or trustees. This defendant should not have been joined with others in the action.” Third. “That there is a misjoinder of parties plaintiff. They should not be joined in their individual and trust capacity.” Defendants appeal.