148 N.Y.S. 733 | N.Y. App. Div. | 1914
The action was brought under section 2653a of the Code of Civil Procedure to determine the validity of the probate of the will of Catherine Ann Staley. The complaint alleges, among other things, that the alleged intestate left her surviving Adam Frederick and the defendants “ her next of kin and only heirs at law,” and that after her death the said Adam Frederick died intestate and the plaintiffs are the administrators of his estate. The executor of Catherine Ann Staley answered the complaint, and, among other things, admitted that the decedent left her surviving the heirs at law and next of kin set forth in the complaint, but, on information and belief, “ denies that they are all the heirs and next of kin that the said Catherine Stalee (sic) had.” The defendant Jacob W. Staley answered that she left the heirs at law and next of kin set forth
Upon the trial the executor of • Catherine Ann Staley moved to dismiss the complaint on the ground that it does not state facts sufficient to constitute a cause of action in not showing that the plaintiffs have any interest, or are parties interested in the action, and in not alleging that all the devisees, legatees and heirs of the testatrix, and other interested persons, are parties to the action. The court ruled that the complaint must be dismissed unless it was amended, and was willing to entertain a motion to amend the complaint. The executor required the payment of terms as a condition of the amendment and the court would not intimate whether it would impose terms or not, and thereupon the plaintiff elected not to ask for an amendment and the complaint was dismissed.
The section of the Code referred to requires that all persons interested be made parties to the action. The complaint has been dismissed, not because all the parties interested are not parties, but because the complaint does not allege that all the devisees, legatees, heirs at law and others interested are parties. The copy of the will attached to the complaint shows that all the legatees and devisees are parties to the action. The allegation that the decedent left her surviving the parties named, “ her next of kin and only heirs at law,” is a sufficient compliance with the section if we consider that it requires an affirmative statement that all the heirs and next of kin are parties. But the section does not declare what the complaint shall contain in that respect. It requires that all such persons shall be parties to the litigation, leaving it to the provisions of the Code to supply any omissions or correct any errors which may appear in the complaint in that respect.
If the complaint contains all the necessary allegations, but omits to name certain parties who are interested and omits an allegation that all persons interested are parties, it cannot be said that on account of the omission it fails to state facts sufficient to constitute a cause of action. The facts constituting the cause of action are the property, the plaintiffs’ interest therein, the execution and probate of the will, the condition of
The complaint shows that in the absence of a will Adam Frederick would have been entitled to a share of the real and personal property of the alleged testatrix. He having survived her, his interest in her real estate, if any, would go to his heirs,
The order and judgment should, therefore, he reversed and a new trial granted, with costs to appellants:
All concurred.
Order and judgment reversed and new trial granted, with costs to appellants to abide event.