Opinion
10-31-1886
LOMERSON, Ex'r, v. VROOM and others.
W. H. Morrow, for demurrant. L. De Witt Taylor, contra.
On demurrer.
W. H. Morrow, for demurrant. L. De Witt Taylor, contra.
BIRD, V. C. The demurrer is for want of parties. The bill is filed for the construction of a will in and by which the testator attempts to dispose of his real and personal estate. One of the questions is whether he has succeeded in disposing of the former or not. If not, his heirs at law are interested. The legatees and devisees named in the will are made parties, but the heirs at law of the testator are not. It is said that it does not appear but what the devisees and legatees are his only heirs at law. This, I think, might be answered by saying that they are not made parties as heirs at laws, but only as legatees or devisees; consequently they would not, as heirs at law, be bound. I understand the rule to be that you must present the party to the court in the precise capacity in which you wish to charge or bind him. See Wade v. Miller, 32 N. J. Law, 296; Kirkpatrick v. Corning, 38 N. J. Eq. 234.
The demurrer must be allowed, with costs.