Pirsson v. Gillespie — 21 N.Y. St. Rep. 55

Majority

p. 55

John W. Pirsson, as Executor, etc., App’lt, v. Mary A. Gillespie et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed January 28, 1889.)

Headnote

Practice—Wile—Construction oe—Necessary parties.

In an action for the construction of a will, in regard to the exercise of a power of appointment of property devised in trust, the persons who would have taken, had not such power of appointment heen exercised, are necessary parties to the action and the record, on appeal, must disclose this fact.

Appeal from judgment construing will.

Emil 8. Arnold, for app’lt; Hy MerJcle and L. L. Delafield, for resp’ ts.

In this'case the court has adjudged that Lucille Hall, by her last will and testament, has duly exercised the power granted to her by the will of one Eunice Hall, and thereby disposed of all the property devised and bequeathed in trust.

This adjudication is made, so far as this record discloses, without the court having before it the persons who would

p. 56

take, kacl not such power of appointment been duly exercised. It does not seem to us that any such adjudication can be made without, the presence of those parties. If there were any necessity for any such adjudication, in order that it should be binding and effectual it was equally necessary that all parties to be affected by such adjudication should be before the court.

As far as the record discloses, no evidence whatever was offered going to show who such persons were, and under this state of the record the court should not have made the adjudication which it did as to the due exercise of the power of appointment.

It is true that no such objection is raised by the appellants or any parties to this record, but this fact, does not render the duty of this court any the less imperative to see that the proper parties are before it so as to make its- adjudication effectual as to all parties who can possibly be interested.

It seems to us that the judgment rendered must be reversed and the case sent back to the special term in order that the proper parties may be brought in, or proof offered that they are already before the court. Such reversal and new trial should be without costs, either against or in favor of either of the parties to this record.

Daniels and Bartlett, JJ., concur.