37 Barb. 208 | N.Y. Sup. Ct. | 1860
By the Oourt,
The defendants urge two' grounds of demurrer to the plaintiffs’ complaint. 1. That there is a misjoinder of causes of action, in that the plaintiffs seek to join a cause of action alleged to exist in their favor as the heirs at law and legatees of Stephen Germond with a cause of action in their favor as the legatees of Smith Germond; and 2. That there is a defect of parties defendant, in that the legal representatives of Sarah E. Kempton and Lydia P. Butler, and the persons to whom John M. Mott transferred the Osborn mortgages, and the legal representatives of other persons interested in the proceeds of the property in controversy, who have died since the death of Stephen Germond and Smith Germond, are necessary parties to the action.
1. As to the first ground of demurrer, I was not at first impressed with the idea that the plaintiffs claimed, in any way, through or under Smith Germond. There is some confusion arising, in the case, from the statement in the complaint of the contents and legacies of both the wills of Stephen Germond and Smith Germond, and of the fact that all the legacies in Smith Germond’s will are paid, except such as are due to parties in the action. But so far as I am able to comprehend the object of the complaint, (which certainly seems to contain some unnecessary statements,) its main purpose seems to be to compel the defendants John M. Mott and Stephen G, Mott to account for portions of the real estate of Stephen Germond, sold by them, and of which they have re
But the complaint also prays that the defendants John M. Mott and Stephen G. Mott may be directed to make an account of all and singular the matters therein stated, and that in such account they may be charged not only with the proceeds of the real estate sold, with the rents', issues and profits of the real estate occupied by them, with the value of the wood and timber, (cut off or removed by them,) but with all other property and things in action of every name and nature in their possession therein (in the said complaint) before mentioned, and with all sums of money due from them for which they are chargeable, receiving credit for the amounts paid by J. M. Mott upon any of the legacies in the will of Stephen Germond, and that the amounts for which he was credited on account thereof, in the accounting before the surrogate, may be equitably adjusted.
How the complaint, in the stating portion thereof—antecedent to the prayer—alleges that John M. Mott, as administrator with the will annexed of Stephen Germond, deceased, had in his possession property of the estate of said deceased, more than sufficient to pay all debts, expenses and specific legacies, and "that a large balance thereof remained in his hands for distribution," to a portion at least of which the plaintiffs are alleged to be entitled. .From other allegations in the complaint it appears that the property of Stephen Germond, for which the defendants are sought to be made to account, is in part real estate improperly or fraudulently
The complaint further expressly alleges that the property which came into the hands of J ohn M. Mott and Stephen G. Mott, as executors of Smith Germond, deceased, was more than sufficient to pay his debts, funeral expenses, and the expenses of administration, and the legacies bequeathed by his will. The will further alleges that several of the legacies given in the will of Smith Germond, to the plaintiffs and others, have never been paid.
It is plain from this statement of a portion of'the complaint, that the defendants are sought to be made liable in this action to account for both estates—that of Stephen Germond, and that of Smith Germond. The prayer is, that John M. Mott and Stephen G. Mott may thus be required to account. Stephen G. Mott is not an executor of the will of Stephen Germond, nor an administrator with the will annexed, nor has he any other (alleged) connection with J ohn M. Mott as a legal representative of that estate.
John M. Mott and Stephen G. Mott are two of the executors of the will of Smith Germond, deceased; and although James Germond, the third executor, is now made a party defendant in consequence of a demurrer to the complaint for that cause, as originally framed, yet no relief is sought against him, unless it can be had under the allegations in the complaint under the prayer for general relief. Other difficulties present themselves. The parties proper to an accounting under the one will are not the same as those under the other. Some of the persons who are proper parties to the one would be wholly unnecessary and improper parties under the other. The defendants are not sought to be made liable in each will for the same property, nor in the same character. As to the unpaid legacies under the will of Smith Germond, they are merely- chargeable and are only attempted to be charged as executors. As to the will of Stephen Germond, they are, in
The decision of tms ground of. demurrer adversely to the plaintiffs renders it unnecessary to discuss the objection of a defect of parties.
The order of the special term should be reversed, with costs, and judgment given for the defendants, on the demurrer, with costs, with leave to the. plaintiffs to amend, on payment of costs.
Gould, Bogeboom and Beck-ham, Justices.]