114 N.Y.S. 698 | N.Y. Sup. Ct. | 1908
In this action, which is brought under section 2653a of the Code of Civil Procedure, the plaintiff, claiming to be one of the heirs-at-law and next of kin of Julia David Brown, deceased, seeks to obtain a judgment setting aside the probate of an alleged last will and testament of said decedent. The section of the Code in question provides as follows, in part: “ Any person interested as devisee, legatee or otherwise, in a will or codicil admitted to probate in this State, as provided by the code of civil procedure, or any person interested as heir-at-law, next of kin or otherwise, in any estate, any portion of which is disposed of, or affected, or any portion of which is attempted to be disposed of, or affected, by a will or codicil admitted to probate in this State, as provided by the code of civil procedure, within two years prior to the passage of this act, or any heir-at-law or next of kin of the testator making snch will, may cause the validity or invalidity of the probate thereof to be determined in an action in the supreme court of the county in which such probate was had. All the devisees, legatees and heirs
The defendant demurs to the complaint on the ground that the plaintiff has no legal capacity to sue for the various heirs-at-law and next of kin of the decedent, Julia David Brown; and on the further ground that there appears to he a defect of parties defendant, by reason of the failure of the plaintiff to join as parties defendant to the action the heirs-at-law and next of kin of the decedent whom she names in her complaint. The complaint is further demurred to on the ground that it fails to state facts sufficient to constitute a cause of action against the defendant. The question of her legal capacity to sue in the form in which she maintains her action and that of the defect of parties defendant are practically but one question under different aspects of presentation.
This form of action under section 2653a of the Code is entirely new and statutory. It is not in equity but at law. Wallace v. Payne, 9 App. Div. 34; Carolan v. O’Donnell, 105 id. 577. Its evident purpose is to gather together in one forum all the persons interested either in the probate or the contest of the last will of the decedent and to obtain a judgment finally concluding all mankind either for or against the will. Lewis v. Cook, 150 N. Y. 163; Long v. Rodgers, 79
The first question, then, arising upon the demurrer is whether or not the plaintiff can maintain this action under her pleading for the benefit of all the heirs-at-law and next of kin of said decedent. To justify her position she relies upon the language of section 448 of the Code of Civil Procedure, where it is provided as follows: “And where the question is one of a common or general interest of many persons; or where the persons, who might be made parties, are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.” By the allegations of her complaint she seeks to bring herself within the scope oE the provisions just quoted. Ho doubt she and all the other heirs and next of kin of the decedent have a common or general interest in procuring a judgment setting aside the will of the decedent. I do not think that the complaint shows that the parties are so numerous as to render it impracticable to bring them before the court. If, however, the plaintiff can sue as one having a common interest with others, the latter question becomes unimportant; as it has been held frequently that, where the interest is common or general, the number of parties so circumstanced is immaterial to the right of the plaintiff to sue for himself and those having a common interest. Section 448 of the Code of Civil Procedure is but a re-enactment of section 119 of the Code of Procedure, which in turn was, so far as the matter before quoted is concerned, but a statutory adoption and declaration of a rule well established in courts of equity for many years before the adoption of any Code practice. The qxiestion arises at once whether it was the intent of the Legislature to do anything further than to continue in statute form the preexisting rules of courts of equity. Innumerable cases may be found in this State where actions have been maintained by one plaintiff for the benefit of himself and others having a common interest, since the adoption of section 119
I think, however, that the Legislature had a special purpose in enacting section 2653a over forty years after the original enactment of section 448, and that the legislative purpose evidenced in section 2 653a would not be subserved by making all the provisions of section 448 applicable to an action of this kind. There is no practical difficulty in making all the parties interested in an action of this kind actual parties to the controversy, either by joining them as plaintiffs, with their consent, or by making them defendants. Such of them as can be named may be named, and such of them as are unknown by name to the plaintiff may be brought into court under section 451 of the Code of Civil Procedure by service of process. In that manner all the persons' interested may be made actual parties, as section 2653a seems to contemplate.
When we go back to the practice formerly existing under the rules of chancery with regard to actions by one plaintiff for all others interested in common, we find that such practice had definite limitations and restrictions, calculated to protect the actual rights of the persons who were sued for without being made parties by name. Where one sued in equity for the benefit of himself and of all others in common, any of the other persons was at liberty to bring a similar action in his own name, notwithstanding the pendency of the former one. The judgment in either action was interlocutory; and, after its entry in either action, all the other ac
If the plaintiff thus suing on behalf of himself and others was defeated in the action, the judgment obtained therein operated as a bar against all the persons in whose behalf he sued, even though they were not before the court as actual parties. It seems quite evident to me that the Legislature, in furnishing an entirely new form of action under section 2653a, intended a form of remedy not in harmony with or in contemplation of the provision of section 448 of the Code of Civil Procedure, as quoted, and that the exception to the general rule as to making of the parties contemplated by section 448 does not apply to an action of this kind. If the plaintiff can maintain this action, for the benefit of others not named as parties but who have a common interest with her in setting aside the will, then, while her success will inure to the benefit of such persons, her defeat, through ignorance, bad judgment or general inefficiency, woxild likewise forever bar the individuals whom she represented in the action. I do not think that such a contingency was contemplated by the Legislature when it framed section 2653a of the Code of Civil Procedure.
This brings us to the consideration of the second question involved, whether the complaint states facts sufficient to constitute a cause of action against the defendant, The defendant is sued, “ as executrix of the estate of John “ Brown, deceased.” The complaint alleges generally that John Brown, deceased, obtained the probate of the last will of his wife, Julia David Brown, and that John Brown was the sole legatee and devisee of said Julia David Brown in the will which was admitted to probate. It further alleges that the estate of said Julia David Brown consisted of real and personal property. It then alleges that said John Brown is now dead. And “ that the defendant is the sole executrix of John Brown, deceased, who is named in said alleged will
I think, however, that the demurrer should be sustained on both grounds, with leave to amend on payment of costs.
Demurrer sustained, with leave to amend on payment of costs.