Covey v. Covey — 46 N.Y. St. Rep. 440

Majority

p. 440

Cynthia M. Covey et al., App’lts, v. William R. Covey, Adm’r, Resp’t.

(Supreme Court, General Term, Fifth Department,

Filed June 23, 1892.)

Headnote

1. Decedent’s estates—Joinder.

The claim in question was by five legatees of a remainder of personal property after a life estate therein against the administrator of the life tenant to recover the value of a horse belonging to the estate sold by her. Held, that the interests of the plaintiffs being several, this proceeding on a joint claim could not be maintained.

2. Same—"Wafver oe objection.

Where the fact (hat the claim is several does not appear on its face as presented, the administrator does not waive an objection on the ground of misjoinder by consenting to refer. There being no answer or demurrer in such proceedings, he may await developments of the trial, and make objections as the grounds for them appear.

Appeal from an order of the Onondaga special term, entered in Cayuga county, confirming the report of a referee in a reference under the statute.

H. Greenfield, for app’lts; F. S. Coburn, for resp’t.

No question is made of any of the facts found by the referee; accordingly no case was made, but the confirmation of the report was opposed on the ground that the facts found did not support the conclusions- of law. The findings of fact were to the effect that the plaintiffs were five legatees of a re

p. 441

mainder of personal property, after a life estate therein, which was to be divided equally between them; that the property included a horse, which had been sold by the survivor of the life tenants, the avails of which remained a part of her estate at the time of her death, and was the subject of the claim in this proceeding against the defendant as her administrator.

The referee dismissed the claim on the ground that the plaintiffs’ cause of action wms several, and not joint; that they.had no joint interest in the recovery sought, and could not maintain a joint proceeding therefor. We suppose this conclusion was entirely correct. Myers v. Cronk, 45 Hun, 404 ; 10 St. Rep., 127 . Counsel for the plaintiffs urge that the objection to their being joined, if it existed, was waived by the consent of the defendant to refer the claim as presented. But the fact that the claim of the plaintiffs was several, and not joint, did not appear on the face of the claim as presented, and the administrator, defendant, is not chargeable with knowledge of what the proof would be. There is in this special proceeding neither demurrer nor answer by which the objection could be taken. The defendant may await the developments of the trial, and make his objections as the grounds for them appear. When the fact appeared that the claim of the plaintiffs was for their several shares of a sum of'money in the hands of the defendant, the objection to their joint proceeding for its recovery -was well taken and properly sustained.

The order appealed from must be affirmed.

Order affirmed, with costs.

Macomber and Lewis, JJ., concur