143 N.Y.S. 873 | N.Y. App. Div. | 1913
The controversy is between the two executrices of the last will and testament of Albert H. Moore, deceased, and the complaint is addressed to the equitable side of the court, asking a construction of said will. The plaintiff and defendant, besides being coexecutrices, are colegatees of the residuary estate. The will contains no trust provisions and relates only to personal property. The question which perplexes the plaintiff is as to how the residuary estate should be divided when the time for division arrives between the two residuary legatees, a question well within the competency of the Surrogate’s Court to determine and which should be left to the determination of that tribunal.
The rule is of quite general application that when complete relief can be obtained in the Surrogate’s Court the Supreme Court will refuse to take cognizance of an action, and that before it will do so facts must be set out in the complaint suffi
The demurrer was to the jurisdiction of the court, as well as that the complaint stated no facts sufficient to constitute a cause of action, and it is urged that this demurrer is bad because, the Supreme Court has jurisdiction of the action if it sees fit to exercise it. This may be true, but the pleading, if insufficient as a demurrer, was good as an appearance, and the case was one in which judgment could not be taken except upon application to the court, and upon that application the defendant was entitled to be heard, and to argue either that the court had no jurisdiction, or, if it had, that it should not exercise it. For the reasons above stated the plaintiff’s application for judgment should have been denied.
The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, and judgment directed for the defendant dismissing the complaint, with costs.
Ingraham, P. J., Laughlin, Dowling and Hotchkiss, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, and judgment ordered for defendant dismissing complaint, with costs.