Foulks v. Foulks

6 N.Y.S. 112 | N.Y. Sup. Ct. | 1889

Pratt, J.

Various objections are made to the sufficiency of the complaint. It is said no allegation is made that plaintiff has demanded his legacy. It is alleged that the executors have refused to pay it to him; and a distinct refusal by them to pay may be sufficient to excuse him from making a formal demand. It is objected that there is no allegation that a year has expired since letters were issued to the executors. The allegation is that the will was admitted to probate September 13, 1886, and the summons is dated in 1889. We think it may be inferred that letters were issued to the executors named in the will simultaneously with the probate. Neither of these suggestions is of much importance in view of the allegation that there is in the hands of the executors $16,000 to which plaintiff is entitled under the will, which the executors are about to distribute to other parties. If that be true, the action would be maintainable without regard to the time that has elapsed since the issue of the letters. Plaintiff could not be required to lie by wilhout action, and see his money distributed to other parties, even if it be true that less than a year had elapsed since the issue of letters. It is also objected that defendant Charles H. Poulks, who demurs, is not a necessary party. If that be true, it does not sustain the demurrer. The action is in equity, and joining an unnecessary party does not render the complaint invalid. Judgment affirmed, with costs. All concur.