73 N.Y.S. 903 | N.Y. App. Div. | 1902
The complaint alleges, and the defendant by his demurrer admits, that by the will of Joseph P. Hale the rest,
It is not disputed but that the executors of the estate of the appellant’s testatrix would be proper parties defendant to this action,, but the demurrer is based upon the ground that the court has no jurisdiction over the person of the executors appointed by the courts-of a foreign state. We think this objection is conclusively an
If the plaintiff could maintain such an action as the owner of this estate which vested in him upon the probate of the will of his testator, he certainly is a proper party to an action which involves the title to property in which his testator was interested, and where such interest passed to the executors upon the grant of letters testamentary. To a complete determination of the question as to the title of the property held by the executors of the estate of Joseph P. Hale the appellant is a necessary party, as the person in whom was vested the title to a third of the residuary estate of Joseph P. Hale, and, while to establish the appellant’s title it may be necessary to prove the proceeding in the probate court of Massachusetts, such proof is the evidence of his. title. The action, as before stated, is not brought to enforce an obligation of the appellant’s testatrix where he is sued in a representative capacity. He is made a party to this action as the legal owner of an interest in certain property which is the subject-matter of the action. The method by which
It follows that the judgment appealed from should be affirmed, with costs. All concur.