49 A.D. 6 | N.Y. App. Div. | 1900
This action was brought to obtain a judicial construction of the will of Frederick Hammen, deceased, and to have it adjudged and
The complaint, in substance and effect, is the same as that of Konvalinka v. Schlegel (104 N. Y. 125), and the fact that that case passed through the General Term and Avas decided in the Court of Appeals, without the suggestion being made that the action could not be maintained, is a sufficient warrant for holding that the complaint did contain the necessary averment of facts, and the demurrer ■should have been overruled. The court below has already construed the will, as Ave believe, correctly, under the rule laid down in the Konvalinka Case (supra); and, as there can be no controversy over the facts, judgment should have been entered accordingly.
The judgment appealed from should be reversed and the demurrer overruled, Avith costs.
All concurred.
Judgment reversed and the demurrer overruled, with costs, with leave to the defendants to withdraw demurrer and serve answer within twenty days, upon payment of the costs of demurrer and of ■this appeal. ' ,