
    Eugene B. Curtis, Appellant, v. Harriet A. Curtis and Others, Defendants, Impleaded with Harry Curtis and Others, Respondents.
    Third Department,
    May 22, 1908.
    Pleading — complaint — defect of parties.
    A complaint is demurrable which shows on its face that necessary parties are not joined.
    A provision of a will whereby testator gave the income of a house to his children with 'remainder to their children, which is copied into a complaint, is not equivalent to an allegation that there are grandchildren surviving só as to make the complaint demurrable for defect of parties.
    Chester and Sewell, JJ., dissented.
    Appeal by the plaintiff, Eugene B. Curtis, from a judgment of the Supreme Court in favor of the defendants, Harry Curtis and others, entered in the office of the clerk of the county of Saratoga on the 5th day of October, 1907, upon the decision of the court, rendered after a trial at the Saratoga Special Term, sustaining the said defendants’ demurrers to the amended complaint.
    
      J. W. Atkinson, for the appellant.
    
      Thomas O' Connor, for the respondents. ■
   Kellogg, J.:

I think the will did not suspend the power of alienation.

A complaint is demurrable for a defect of parties where it appears upon the face thereof that necessary parties are omitted. (Code Civ. Proc. § 488.)

It is claimed that the provision of the 4th item of the will, copied into the complaint, sufficiently indicates that there is such defect of parties. By that item in the will the testator gives the income of his house and lot to his three children during their natural lives, and then provides: “ And after the death of my said sons 1 direct that the same shall go to their respective child or children, and that the child or children of each of my said sons shall only take the share that his or her or their father would have taken had I died intestate. And if any of my said sons shall die leaving no children him surviving, then I direct that the share which would have gone to his child or children shall go to the child or children of my other said sons in this paragraph mentioned.”

I do not think that this is equivalent to an allegation in the complaint that there were children of any of the sons surviving. If there were such children, any party to the litigation had the right, upon an application to the court, to have them brought in and their rights adjudicated. The testator was not providing for a situation as it existed in 1889 when the will was made, but for a situation as it might exist upon the death of one or more of his sons after his death. The provision cited would relate to children born after the making of the will as well as those born before, and it cannot be ascertained from the will itself whether any of the sons have children. There was no defect of parties appearing upon the face of the complaint; the interlocutory judgment should, therefore, be reversed, with the usual leave to the defendants to withdraw the demurrers and answer upon payment of costs.

All concurred, except Chester and Sewell, JJ., dissenting.

Interlocutory judgment reversed, with costs, and demurrers overruled, with costs, with usual leave to defendants to withdraw demurrers and answer upon payment of costs in both courts.  