197 A.D. 624 | N.Y. App. Div. | 1921
This appeal is from an order denying the motion of the defendant James J. Larkin, as sole executor and trustee under
This action is brought in equity by the plaintiff John Fleming to procure a judicial construction of the last will and testament of his father, John Fleming, deceased, and to obtain the decree of the court directing the defendant James J. Larkin, as sole surviving executor of and trustee under his father’s will, to pay over to the plaintiff the whole or a part of the residuary estate of his said father. The will of John Fleming, deceased, among other things, by its 14th clause, provided that the residue of his estate should be held by his executors named in said will, or the survivor of them, in trust to invest the same and receive the income therefrom, to pay taxes and expenses thereon, and pay over the net income therefrom in such sums as testator’s said executors in their wise judgment and discretion might deem proper to his son, the plaintiff, until he should attain the age of twenty-five years, at which time, the will provided, by said 14th clause, that he should be paid the sum of $50,000, and upon the plaintiff reaching the age of thirty years, if at that time, in the wise judgment and discretion of testator’s said executors, or the survivor of them, testator’s said son, the plaintiff, was capable of properly managing, caring for and preserving the same, then the testator directed that the remainder of his residuary estate be paid over to his son, the plaintiff, absolutely and forever. By said clause the testator further provided that in case said executors in their wise judgment and discretion should determine that the plaintiff was not capable of properly managing and caring for the remaining principal of the residuary of testator’s estate upon arriving at thirty years of age, then the executors, or the survivor of them, were directed to continue said trust until such time as they might determine that the plaintiff was competent to properly manage and care for the same or until his death, in the meantime paying the net income to testator’s said son, the plaintiff, in such sums and at such times as said executors might elect. In the event of the death of said son before distribution of
The plaintiff, in his complaint, alleges that he has attained the age of thirty years, and that he has since Ms father’s death conducted Ms business, and that the defendant Larkin, as sole surviving executor and trustee under said will, has determined and should determine that the plaintiff is entitled to said residuary estate, and the plaintiff demands judgment for a construction of Ms father’s will, and particularly the 14th clause thereof, in such manner that the defendant, as sole surviving executor and trustee, be directed to pay to the plaintiff the entire balance of said residuary estate.
The defendant Larkin, as sole surviving executor, answered in the action, denying the allegations of the plaintiff’s complaint as to Ms ability to successfully manage the residuary estate, and alleging the necessity for the continuance of said trust in the hands of said defendant.
The Moran Towing and Transportation Company, after the commencement of said action, applied to the court for leave to intervene as a party defendant, alleging that it was a judgment creditor of the plaintiff and had obtained a judgment against him in the Kings County Supreme Court on July 13, 1920, in the sum of $18,243.14, and that execution against said plaintiff was returned unsatisfied, and that thereafter an order was made and entered directing a garnishee execution against the income of said residuary estate held in trust by the defendant Larkin and wMch income was payable to the said plaintiff by said trustee, and that thereupon such execution was issued to the sheriff of New York county and thereby'the said trustee was required to pay ten per cent of the income of said estate to said sheriff, and that thereby the Moran Towing and Transportation Company acquired and now possesses a specific hen upon the trust estate and the income thereof, and was a necessary party to the action affecting the same. An order was made permitting said defendant to intervene. Thereupon the said intervening defendant answered, denying the allegations of the 17th clause of plaintiff’s complaint, wherein the plaintiff alleged that said plaintiff and the defendant James J. Larkin, as sole surviving executor and trustee of the last will and testament of John Fleming,
The action is brought to obtain a construction of the will of the testator, and to determine whether and to what extent the plaintiff is entitled to receive the trust estate. In the answer of the intervenor an attempt is made to allege and have litigated matters clearly not within the domain of the controversy as determined by the complaint. This may not be done. (Nauss v. Nauss Brothers Co., No. 2, 195 App. Div. 328.)
The defendant trustee properly moved to strike out the irrelevant matter contained in the respondent’s answer. He ■could not demur, and his only remedy was by motion to strike out. (Code Civ. Proc. § 545; Stibbard v. Jay, 26 Misc. Rep. 261; North River Savings Bank v. Buckley, 130 N. Y. Supp. 787; Bradley v. Sweeny, No. 1, 120 App. Div. 315, 317.)
If the plaintiff is unsuccessful in his attempt to procure a decree herein directing the turning over to him of the trust estate and the trust continues, then the rights of the intervenor will be protected under the existing order that the said
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion of the defendant, appellant, be granted, with ten dollars costs.
Clarke, P. J., Laughlin, Dowling and Greenbaum, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and defendant, appellant’s motion granted, with ten dollars costs.
