35 N.J. Eq. 406 | New York Court of Chancery | 1882
This is a bill originally brought against David Jones to enforce the specific performance of a contract between him and the complainant, for the purchase by him from it of real property in Newark. He appeared to the suit and answered. He subsequently died in New York, leaving a will, by which he appointed J. Alexander Thayer, Wilson S. Hunt, Hamilton Blydenburgh and John J. Jones, executors, and directed that his whole estate be divided into five equal parts, all of which he gave to his executors, in trust for his five brothers and sisters (one of the former is the before-mentioned executor, John J. Jones) for the respective lives of the beneficiaries, with direction to transfer the same, after their death, to their respective children &c. Messrs. Thayer and Jones proved the will in New York. It has not been proved in this state. After it had been proved in New York, an order was duly made, on application in behalf of the complainant, that the suit stand revived, and that Messrs. Thayer and Jones, as executors, be made defendants therein, in the place and stead of their testator; that the complainant have leave to file an amended bill, and that the executors, Messrs. Thayer and Jones, answer the bill or signify their disclaimer of the suit and the matter in controversy therein, in thirty days after service of a copy of the order and a copy of the amended bill, and that, in default of such disclaimer, the answer filed should be taken as and for theirs. On the same day, they appeared to the suit and waived service of process on them. The bill was subsequently amended, in accordance with the leave granted. By consent, the executors were permitted to demur, notwithstanding the terms of that order, and they have filed a demurrer, on the ground of want of necessary parties (the devisees under the will), and for want of equity. On the hearing, another ground was urged, viz., that they, being foreign executors, are not ■amenable to the suit; and if they were, their co-executors should
The demurrer will be overruled, with costs.