
    Elizabeth M. Beck, Respondent, v. John Staudt, as Executor, etc., of Joseph Huber, also Known as Joseph Huber, Jr., Deceased, Respondent. Frederick W. Huber, Jr., and Others, Applicants, Appellants.
    First Department,
    November 4, 1910.
    Parties —suit against executor to impress trust on property—when adverse claimants under will proper parties.
    The beneficiaries of a testamentary trust claiming that certain bonds belong to the trust estate are entitled to be brought in as parties defendant in a suit in equity brought by a legatee against the executor to impress a trust upon the bonds in her favor and to compel the executor to turn them over, where it
    . appears that they are dissatisfied with the intention of the executor to submit the question of title upon an agreed statement of facts.
    Under such circumstances the issues ought to be tried in the ordinary method so that there may be a cross-examination of witnesses, and the beneficiaries claiming adverse title are proper though not necessary parties to the suit in equity.
    Scott and Dowling, JJ., dissented.
    
      Appeal by Frederick W. Huber, ,Tr., and others, applicants, from an order of the Supreme Court, made at the New York Special Term* bearing date the 23d day of August, 1910, and entered in the office of the clerk of the county of New York, denying the applicants’ motion to be brought in as parties defendant.
    
      George H. Taylor, Jr., of counsel [Appell & Taylor, attorneys], for the appellants.
    
      Gustav Lange, Jr., for the defendant, respondent.
    
      Edward W. S. Johnston of counsel [Johnston & Johnston, attorneys], for the plaintiff, respondent.
   Clarke, J.:

J oseph Huber died leaving a last will and testament which left the residuary estate to his executors in trust to divide the same into as many equal shares as there might be children, if any, of his brothers surviving him at his death, to hold one of said separate shares in trust for each of said children, and to apply the rents, income and protits thereof to the support of the child so entitled to such share during his or her lifetime, and in the event that the child should attain the age of twenty-five years before his or her death, to pay such distributive share to such child.

Testator also bequeathed $50,000 to Elizabeth M. Beck “ as a token of my esteem.” He had a safe deposit box in the deposit vaults of the Germania Bank, and therein was found an envelope containing ten bonds of the Brooklyn Union Elevated Bailroad Company, with coupons attached for $1,000 each, contained in an envelope, on which were the words in his own handwriting : “ The property of Miss Lizzie Beck, 842 Forest Avenue, N. Y.”

The plaintiff made a demand on the executor for these bonds, and brings this suit to impress a trust in her behalf on said bonds. The complaint alleges that the testator by taking the bonds and coupons attached thereto, which then belonged to him, putting them in the envelope and writing the words quoted thereon, meant thereby “ that he had passed and transferred the title to such bonds and the coupons attached thereto to this plaintiff, and that he constituted himself the trustee thereof for this plaintiff, and therein and thereby declared that he himself held said bonds in trust for this plaintiff;” that this was an irrevocable trust, and asked judgment that the court adjudge that testator declared and executed in favor of this plaintiff a trust in said bonds, and that they were at the death of the testator the property of plaintiff, and that neither the estate of the said testator nor the defendant, as the executor, had any right, title or interest in the same, and that the defendant deliver over to the plaintiff the said ten bonds with the coupons attached.

Appellants, the children of testator’s brothers, and the cesiuis que trustent under the paragraph of the will disposing of the residuary estate, claim that said bonds belong to the residuary estate, and hence that they are interested in the subject-matter of the action. They ask to be allowed to intervene. Their main reason is that, while they do not impugn the good faith of the executor, they are dissatisfied with his intention as expressed to submit the question of title to these bonds upon an agreed statement of facts to the Appellate Division. They say such a case is pre-eminently one to be tried before the court in the due and ordinary form in order that there may be a proper cross-examination of the witnesses in this attempt to take from the estate $10,000 under an implied trust.

I am of the opinion that such an issue ought not to be submitted on an agreed statement of facts, but that it should be tried in the ordinary method provided for the ascertainment of the facts. The interest of the applicants may be somewhat remote, but section 4&z of the Code of Civil Procedure is broad enough to allow the'intervention in an equity suit. Appellants are not necessary parties, but they have an interest in the subject of the action.

Under the peculiar circumstances disclosed, and especially in view of the proposed method of determining the main issue, we think the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Ingraham, P. J., and Miller, J., concurred ; Scott and Dowling, JJ., dissented.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  