105 Misc. 521 | N.Y. Sup. Ct. | 1919
Two motions for judgment upon the pleadings are before the court, one, a motion by the plaintiff upon the amended complaint and the demurrer of the defendants Everett'S. and Jesse F. Hiscox, two of the. executors of the last will of David Hiscox, deceased, and the other by those two defendants upon the amended complaint and the demurrer interposed by them. The demurrants urge that the complaint is insufficient in law upon several grounds, which will later be noticed.
The defendants urge that they should have judgment dismissing the complaint upon the five following grounds: “ 1. The plaintiff is not a legatee. 2. There was no legal obligation on the sons to employ the plaintiff. 3. The complaint shows that the plaintiff was not employed and that, therefore, no cause of action arose for payment to him of salary. 4. The court has not jurisdiction of the subject matter. 5. There is a defect of parties defendant.” These several grounds will be considered in the inverse order in which they are stated.
The last ground of demurrer, to wit, that there is a defect of parties defendant by the omission of all the legatees and beneficiaries mentioned in the last will is not well taken if this action be merely one against the executors to enforce the payment of a legacy. Section 1819 of the Code of Civil Procedure provides that: “ If, after the expiration of one year from the grant
The next objection, which is that the court has not jurisdiction of the subject matter of the action, is also without force. Such actions are expressly permitted to be brought in this court both under section 1819 and the other sections which are- contained in title 3, article 1, chapter 15 of the Code of Civil Procedure.
The next objection which the defendants urge is that the complaint shows that the plaintiff was not employed, and that therefore no cause of action arose for payment to him of salary. As to this objection it may be said that the force of it depends upon the question whether there was, under the terms of the will, a legal obligation on the part of the executors to employ the plaintiff in the conduct of the business of the testator. If such legal obligation existed, then it was not requisite in order to establish the liability of the estate, that the executors should enter into any new contract of employment with the plaintiff, and if no such obligation existed the plaintiff cannot maintain any action against the executors without alleging and proving the existence of a new contract.
There remains for consideration, then, the question whether the provision of the will for the benefit of the plaintiff constitutes a legacy to him of the sum of $2,000 a year, or whether it imposes any obligation upon the executors Everett and Jesse Hiscox to employ him in the business conducted by them under the provisions of their father’s will, and to pay him for his services rendered in pursuance of such employment at
The demurring defendants strenuously urge that the clause of the will directing the plaintiff’s employment in the business was not binding upon them; that it should be treated as a recommendation which they were free to disregard if they chose. The authorities which have been cited, or which my research has disclosed pertaining to this question, are not numerous. In Hibbert v. Hibbert, 3 Mer. 681, a direction by a testator that a certain person should be appointed “ receiver ” of his real and personal estates was upheld so far as to sustain the appointment of such person as consignee of estates in Jamaica without security other than his personal recognizance. In Williams v. Corbet, 8 Sim. 349, a provision of a will appointing the plaintiff auditor of the accounts of testator’s estate during the execution of
The authorities in the United States go only to the extent of holding that a direction to executors or trustees to appoint or employ a certain person as attorney is not binding upon them. Young v. Alexander, 84 Tenn. 108; Matter of Ogier, 101 Cal. 381; Matter of Pickett’s Will, 49 Ore. 127, 137; Matter of Caldwell,
The result of my consideration of these cases is that, while it may be regarded as settled in this state that a testator cannot require his executors or trustees to employ an attorney or counsel nominated by him, there is no authority that he may not require them to employ a designated person in some other capacity not involving a relationship so highly confidential as that of attorney and client. In the present case it does not appear from the complaint that a compliance with the provisions of the testator’s will relating to the employment of the plaintiff would involve his employment in any confidential capacity. My conclusion is therefore
It is true that in some of the cases cited (see Shaw v. Lawless, supra, and Foster v. Elsley, supra) the question whether there could be a trust in favor of a person designated for employment by executors or trustees, because of the absence of any subject matter, was considered; but it seems to me that no such question is involved. The testator, having created a trust by his will, is entitled to direct the trustees as to its manner of execution, and may, if he chooses, direct them to employ a certain person named by him in any other than a confidential capacity. But even if plaintiff is to be regarded as a beneficiary of a trust, the subject matter is the property ■—that is, the business and its assets — which the trustees are required to administer in part for his benefit, if he fulfill the conditions entitling him to receive the benefit, and the trustees are bound to afford him an opportunity to fulfill those conditions; that is, on the facts alleged in the complaint.
Plaintiff is not, however, pursuing the appropriate remedy. He has brought an action at law against the executors as such for money damages, whereas he should have sued in equity to impress an equitable
Accordingly the plaintiff’s motion for judgment on the pleadings must be denied, and that of .the demurring defendants granted, with ten dollars costs, with leave to the plaintiff, on payment of such costs, to apply for an amendment of the summons and complaint as hereinbefore indicated.
Ordered accordingly.