Opinion
02-24-1903
BROWN et al. v. TALLMAN.
Mr. Price, for complainant. John T. Rosell and Frank P. McDermott, for respondents.
Suit by Mana L. Brown and others against Cornelius H. Tallman, as executor of the will of Jacob B. Tallman, deceased. On demurrer to the bill. Demurrer sustained.
Mr. Price, for complainant.
John T. Rosell and Frank P. McDermott, for respondents.
EMERY, V. C. The demurrer must be allowed because of the failure of complainant to allege or show title to the lands in question. The allegation that they "are devisees and legatees under the last will and testament of Jacob B. Tallman, deceased," is not sufficient. The bill should at least allege that they are devisees of the lands in question, or have some interest in these lands as devisees or legatees, and it may be necessary to set out such portions of the will as show their title or interest.
As to multifariousness, my view is that the bill is not multifarious as against Cornelius Tallman, one of the demurrants; that the other demurrant stands in the same position with him, because the demurrer is Joint, not "joint and several," and must therefore fail unless good as to both. 1 Dan. Ch. Pr. (6th Am. Ed.) *584, and cases cited in note 7.
Costs must be paid by complainant. Thestatute (Chancery Act, § 24, Revision 1902; P. L. 519) makes this compulsory.
Complainant may amend his bill.