Opinion
December 2, 1910.
George W. McKenzie, for the appellant.
Benjamin A. Morton [ Perry D. Trafford with him on the brief], for the respondents.
The action is to test the validity of a will and its probate. Two defendants conceived nine grounds of demurrer to the complaint, seven of which are bad. The reference to the earlier unprobated will is to account for the presence of certain persons who are alleged to claim interest thereunder, perchance, and went quite far enough for that purpose. The will is not probated, and Warner is not its executor, nor has an administrator of Layton Ellis Day been appointed. This disposes of the second, fifth, sixth and seventh grounds of the demurrer. Torrey as executor, not individually, is made a party. He is a legatee, and should as such be bound by the decree, and the record should be in such technical form as to show it; but there is no occasion to make him a party as trustee. The will imposes upon him duties as executor, and by virtue of such office he will receive the property and make disposition of it. If Torrey is a trustee, it by legal implication follows from his executorship. There is no occasion to describe him as such in the complaint. ( Knox v. Metropolitan El. R. Co., 58 Hun, 517, 519; affd., 128 N.Y. 625.) This disposes of the fourth, eighth and ninth grounds of demurrer. The complaint does not show that "All the devisees, legatees and heirs of the testator and other interested persons" have been made parties. It is quite another thing to state that certain persons made parties "are the only persons entitled to any part of the estate," or that they "are all the persons interested in the estate." There might be different conclusions in that regard. It is convenient to observe the requirements of the statute, and it should be done. Therefore, the first ground of demurrer is tenable. The demurrers are sustained upon the first and third grounds only, and the order appealed from should be modified to so state, and as so modified affirmed, without costs, with leave to serve an amended complaint upon the terms of the order appealed from.
HIRSCHBERG, P.J., WOODWARD, JENKS and RICH, JJ., concurred.
Order modified in accordance with opinion, and as so modified affirmed, without costs, with leave to serve an amended complaint upon the terms of the order appealed from.