
    John W. Foulks, Resp’t, v. Charles H. Foulks, et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed June 28, 1889.)
    
    1. Executors and administrators—Action against—When maintained.
    A party may maintain an action to recover a legacy in the hands of executors, which they are about to distribute to other persons, although a year may not have elapsed since letters were issued.
    2. Pleading—Complaint—Action to recover legacy—Allegations.
    In an action to recover a legacy, the complaint need not allege the making of a formal demand, where it alleges a refusal on the part of the executors to pay the legacy.
    3. Equity—Complaint.
    Where the action is in equity, joining an unnecessary party, doesnofi render the complaint invalid.
    Appeal from an interlocutory decree made by Mr. Justice Barnard at special term, Kings county, overruling the demurrer interposed by the defendant Charles H. Foulks.
    The ground of the demurrer is that the complaint does not state facts sufficient to constitute a cause of action.
    
      John Cummins,tor app’lts; Goodrich, Deady & Goodrich, for resp’t.
   Pratt, J.

Yarious objections are made to the sufficiency of the complaint. It is said no allegation is made that plaintiff has demanded his legacy. It is alleged that the executors have refused to pay it to him: and a distinct refusal by them to pay may be sufficient to excuse him from making a formal demand.

It is objected that there is no allegation that a year has expired since letters were issued to the executors. The allegation is that the will was admitted to probate September 13, 1886, and the summons is dated in 1889. We think it may be inferred that letters were issued to the executors named in the will simultaneously with the probate..

Neither of these suggestions are of much importance in view of the allegation that there is in the hands of the executors $16,000, to which plaintiff is entitled under the will, which the executors are about to distribute to other parties.

If that be true, the action would be maintainable without regard to the time that has elapsed since the issue of the letters. Plaintiff could not be required to lie by without action and see his money distributed to other parties, even if it be true that less than a year had elapsed since the issue of letters.

It is also objected that. defendant, Charles H. Foulks, who demurs, is not a necessary party. If that be true it does not sustain the demurrer. The action is inequity and joining an unnecessary party does not render the complaint invalid.

Judgment affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., not sitting.  