| N.Y. Sup. Ct. | Feb 15, 1863
It seems plain that the wife of Wm. Walrath is an unnecessary party plaintiff. She obtains her only right—an inchoate right of dower—through her husband, and this right attaches to those lands to which her husband is entitled under the will. A judicial determination of his right under the provisions of the will, if necessary, would conclude her as to any claim for dower. She would have dower in the lands devised to him, according to the true construction of the will.
But it is insisted that a misjoinder of parties plaintiff, cannot be urged on demurrer. It has been often held that a misjoinder of< parties defendant, is not ground of demurrer. (23 How., 396; 12 How., 134; 17 N. Y., 592;) and very general language has been used in some of the cases, to the effect, that a demurrer to a complaint for an
The complaint is however fatally defective in this : it is not alleged that the testator died seized or possessed of any property whatever, real or personal; without an allegation that there was property on which the will could take effect, certainly, the complaint does not state' facts sufficient to constitute a cause of action.
But it is difficult to see how the complaint could be held good, even if it contained an averment that the testator died seized and possessed of both real and personal property, and the action was by William Walrath alone. He is not the executor of the will, nor in any sense a trustee, hence he is not entitled to ask instruction or advice from the court—nor does it appear from the complaint that he has been in any way injured or in any danger of being injured either in his person or property by the defendants, or by either of them.
The plaintiffs rest their case on the authority of Bowen agt. Smith, (10 Paige, 193,) when it was held, that where the executor takes the legal estate as trustee, any person having an interest in such property (so held in trust) may file a bill, to have the construction of the will settled, or to have the question as to the validity of its provisions determined, so far as concerns the interest of the complainant in the property, and to have a decree against such executor for such parts or portions of the property as he is legally and equitably entitled to recover. In this case the bill of complaint was dismissed for want of equity, and on the ground that the plaintiff had a remedy, if any, at
So, in the case under consideration, there is no trust as regards the real property devised by the will. The legal title is not given the executor or to any one in trust. Whatever rights William Walrath gets by the provisions of the will, are absolute and unconditional. He takes a legal estate disconnected with any trust. So, as was remarked by the chancellor in the case cited, the decision of all legal questions in regard to it, belong, therefore, exclusively to the courts of law, and it follows that his rights must be protected in the usual proceeding by an action at law, if any one attempts, improperly and unlawfully, to interfere with them.
As regards the personal estate, perhaps a case might be made calling for a decision as to the true construction and meaning of the will. As to the personal property the executor is a trustee, and William Walrath is cestui que trust. If, therefore, a case be made in other respects proper for the action of the court, the complaint might be upheld. No case is made out, however, on the complaint, in any view, and the demurrer must be held to be well taken.
Judgment is ordered for the defendant, Handy, on. the demurrer with costs, but with liberty to the plaintiff to withdraw the demurrer and to serve an amended complaint on payment of costs of the demurrer .