51 N.Y.S. 529 | N.Y. App. Div. | 1898
The only ground of demurrer pressed upon us in this appeal is the fourth,—that “the complaint does not state facts sufficient to constitute a cause of action.” It does not seem to me very material to a decision of this case to consider in whom the title to the real estate left by the testator vested. His intention evidently was to furnish a home for his brothers, Jacob C. and Stewart L., during their lifetime, upon real estate owned by him, and that the executors should at least have a general supervision over such real estate during their lives, and upon their decease to sell it, and divide the proceeds as Specified in the will. If this foreclosure and sale take place, these intentions of the testator will necessarily be defeated. The plaintiffs have an interest, as executors, in carrying into effect the intentions and desires of their testator, and in preventing, their defeat. The bond accompanying the mortgage now under foreclosure was the personal bond of the deceased. Any deficiency upon the sale will be payable out of the estate in the hands of the executors, if any is left. Glacius v. Fogle, 88 N. Y. 434. There is a liability, at least, that the ex
The judgment should therefore be reversed, with costs and disbursements of this appeal, the demurrer overruled, and judgment directed for the plaintiffs, with costs, with permission to the defendants to withdraw such demurrer, and interpose such further and other pleading as they may be advised, upon payment of costs within 20 days after the service upon them of a copy of the order herein. All concur.