
    Elise M. Jewett, Plaintiff, v. Melinda P. Schmidt, and Bache McEvers Schmidt, Individually and as Administrators, Etc., of George P. Pollen, Deceased, et al., Defendants.
    (Supreme Court, New York Special Term,
    September, 1904.)
    Defect of parties — When although waived by the defendants the court will not direct final judgment — What persons should not be made parties under a claim that they are interested as remaindermen in an estate — Questions involved in the construction of a will, though not presented by the pleadings, are to be deemed to have been decided in an action for its construction.
    Although the defendants in an action, by their omission to raise the question of a defect of parties by answer or demurrer, must be deemed to have waived such defect (Code Civ. Pro., §§ 488, 499), the court will not direct final judgment, if, because of its inconclusiveness upon persons interested in the subject of the action, who have not been made parties thereto, the parties to the action or any of them will be exposed to risk in respect to the rights of such omitted persons or will be otherwise prejudiced.
    It is not the mere insistence of the objecting party that others should be brought into the litigation which will justify the court in withholding its judgment, but it must appear that the presence as parties of the persons claimed to have been omitted is necessary to a complete determination of the controversy, in that they either have an actual interest, present or contingent, or that they assert an interest upon plausible grounds or that the question of such interest is involved in reasonable doubt.
    George Parbury Pollen died in 1877, leaving a last will and testament, by which he gave to his daughter, Melinda P. Schmidt, the income of $200,000 during her natural life, with remainder, at her death, "to her legal issue in equal portions after they severally reach the full age of twenty-one years.”
    In 1880 a judgment was rendered in an action brought to obtain a judicial construction of the will, to which action all of the children of the testator’s daughter, Melinda P. Schmidt, were parties, which judgment declared, although the pleadings in the action did not in express language present the particular question for determination,' that the term “ legal issue ” used in the clause quoted meant such only of the children of Melinda P. Schmidt as should survive the latter.
    In an action brought against Melinda P. Schmidt and her son, Bache McBvers Schmidt,-as administrators with the will annexed of George Parbury Pollen, to compel them, to account for the $200,000 fund and to have a trustee thereof appointed in place of the deceased trustees designated in the will, it appeared that John William Schmidt and George Parbury Pollen Schmidt, sons of Melinda P. Schmidt, had died intestate, without issue, leaving their father, Fritz Leopold Schmidt, Sr., surviving them; that John William Schmidt was also survived by his wife, Maria Louisa Schmidt, who had also been appointed administratrix of his estate.
    
      Held that the fact that Fritz Leopold Schmidt, Sr. and Maria Louisa Schmidt, individually and as administratrix of John William Schmidt, deceased, were not made parties to the action, did not furnish any reason why the court should not grant final judgment in the action;
    That, as the omitted persons were not “issue” of Melinda P. Schmidt, there was not even plausible support for the pretence that such persons were among the class of remaindermen designated in the will of George Parbury Pollen;
    That, although the pleadings in the action brought for the construction of the will of George Parbury Pollen did not specifically present any question in respect to the bequest to the testator’s daughter, Melinda P. Schmidt, and to her “issue,” all the questions which might or could arise from the instrument were within the general scope and purview of the action and could be litigated and determined therein;
    That, consequently, the judgment entered in that action should be accepted as conclusive upon all the parties thereto and upon all persons whose interests, like those of the persons claimed to be necessary parties to the present action, were derivative from the right of any party so concluded.
    Motion for final judgment upon the report of a referee made pursuant to the provisions of an interlocutory judgment which directed an accounting.
    Thos. J. Falls, for plaintiff.
    Barclay E. V. McCarty, for defendants Melinda P. Schmidt and others.
    Walter Carroll Low, for defendant F. L. Schmidt, Jr.
    Richard Dickinson Jewett, guardian ad litem, for defendants Elizabeth M. Jewett and others.
   Bischoff, J.

Closer scrutiny of the question than the conditions at the time of the original submission of this matter for final judgment permitted has persuaded me that the status toward this litigation of the persons claimed to have been omitted, as necessary parties, without whose presence as such a complete determination of the controversy cannot be had, was misconceived.

George Parbury Pollen died in 1877, leaving a last will and testament wherein he provided for his daughter Melinda P. Schmidt, one of the defendants, as follows: To my daughter Melinda I also give the interest or income as it accrues on two hundred thousand dollars ($200,000) during her natural life. The said sum to be set apart in such good dividend paying stocks or bonds as may stand in my name at the time of my decease and at the then market value of the same. At her death I will that the said amount of two hundred thousand dollars go to her legal issue in equal portions after they severally reach the full age of twenty-one years.” In the year 1880, a judgment for the construction of the will was rendered in an action to which all the children of said Melinda P. Schmidt were parties, and while the pleadings in that action did not in express language present this particular question for determination by the court the judgment declared that the “ legal issue ” intended by the testator as the persons to take the remainder of the sum to be set apart for the benefit of Melinda P. Schmidt comprehended such of her children only as should survive their mother. So far as the record discloses this judgment has remained unassailed.

Two sons of Melinda P. Schmidt, John William Schmidt and George Parbury Pollen Schmidt, had died prior to the commencement of the present action, brought to compel the said Melinda P. Schmidt and her son Bache McEvers Schmidt as adminstrators with the will annexed of George Parbury Pollen, deceased, to account for the sum set apart for the former, and to have a trustee appointed in the place of those named in the will, who were deceased. John William Schmidt and George Parbury Pollen Schmidt, the deceased sons of Melinda P. Schmidt, died intestate, each without issue, leaving their father, Eritz Leopold Schmidt, senior, them surviving. John William Schmidt was also survived by his wife, Maria Louisa Schmidt, who is also his administratrix. The absence of these persons, Fritz Leopold Schmidt, senior, and Maria Louisa Schmidt, individually and as administratrix of said John William Schmidt, deceased, as parties to the present action, is urged by the defendants as presenting justification for the court’s refusal to direct final judgment upon the referee’s report upon the accounting had under the interlocutory judgment hereinbefore entered; and, though the defendants, by their omission to raise the question of a defect of parties by answer or demurrer, must be deemed to have waived it (Code Civ. Pro., §§ 488, 499), it remains that final judgment should not be directed if, because of its inconclusiveness upon persons interested in the subject of the action and omitted as parties, the parties to the action, or any of them, will be exposed to risk in respect to the rights of such omitted persons, or will be otherwise prejudiced. Osterhoudt v. Board of Supervisors, 98 N. Y. 239; Mahr v. Norwich Union Fire Ins. Soc., 127 id. 452. It is not the mere insistence, however, of the objecting parties-that others should be brought into the litigation, which will justify the court in withholding its judgment. It should appear that the presence, as parties, of the persons claimed to have been omitted is indeed necessary to a complete determination of the controversy, in that they either have an actual interest, present or contingent, or that they assert an interest upon grounds at least plausible, or that the question of such interest is involved in reasonable doubt. Reid v. Vanderheyden, 5 Cow. 719; Garr v. Bright, 1 Barb. Ch. 157; Christman v. Thatcher, 48 Hun, 446; 113 N. Y. 625; Vanderpool v. Vanderpool, 3 N. J. Eq. 120; Van Keuren v. McLaughlin, 21 id. 163; Stovey Eq. Pl. § 72; Calv. Part. 10; Cooper v. Hepburn, 15 Gratt. (Va.) 551; Code Civ. Pro., §§ 446, 447; Van Sant. Pl. § 3, p. 105. A bill in equity, making persons claiming an interest in the personal estate of the testator parties defendant, and alleging that they have no interest in the estate, is demurrable as te such persons. Muir v. Trustees of Leake & Watts Orphan House, 3 Barb. Ch. 477. If the rule were otherwise, and if this is not held to be the obvious meaning of the Code of Civil Procedure (§ 452), the judicial determination of any controversy must necessarily be postponed to abide the cessation of litigious inclination of the parties, or any of them, and the litigation itself could be made to endure so long as a party thereto wills it.

It is to be observed that the question in the litigation at bar does not arise upon the request of the persons alleged to have been omitted as necessary parties, but that it is presented by the objection to final judgment made by those who are parties. However in either case the inquiry should be the same, and we are thus brought to consider the status of the persons claimed to "have been omitted as necessary parties toward this litigation, and what interest, if any, they have in the subject thereof.

As already stated, the persons claimed to have been omitted as necessary parties are Fritz Leopold Schmidt, senior, the father of George Parbury Pollen Schmidt, and John William Schmidt, two deceased sons of Melinda P. Schmidt, and each a party to the action brought for a construction of the will of George Parbury Pollen, deceased, and Maria Louisa Schmidt, the widow and administratrix of John William Schmidt. Hot being of “ issue ” of Melinda P. Schmidt, the testator’s daughter, there cannot be even plausible support for the pretense that the persons, claimed to have been omitted as necessary parties, are among the class of remaindermen designated as such in the will of George Parbury Pollen, deceased, and as such have any interest whatsoever in the subject of the present litigation. It is argued, therefore, and such is the only pretense for the claim, that the persons.named are necessary parties, that the pleadings in the action brought for the construction of the will of George Parbury Pollen, deceased, did not in terms present any question in respect to the bequest under review for the court’s determination, and hence, that in so far as the judgment in that action did undertake to construe it, the court exceeded its authority, and the judgment did not conclude the parties. 2 Black Judg., § 617. I am unable, however, to find any support for this contention as a valid legal proposition. The action was for the construction of the will of George Parbury Pollen, deceased, and the matter in issue, therefore, was the true meaning of the will, not in respect to any particular part of it, but necessarily in its entirety. To ascertain the testator’s intention in respect to particular provisions the court was bound necessarily to consider others, and to ascertain their meaning, since the testator’s intention in any particular direction was more or less dependent upon the context of the will as a whole. It follows, therefore, that though the pleadings in the action brought for the construction of the will may not specifically have presented any question in respect to the bequest to the testator’s daughter, Melinda P. Schmidt, and her “ issue,” all the questions which might arise or could have arisen from the instrument before the court were within the general scope and purview of the action, and could have been litigated and determined therein. That being so the judgment should be accepted as conclusive upon all the parties thereto and all persons whose claim of interest in the estate is derivative from the right of any party so concluded. Le Guen v. Gouverneur, 1 Johns. Cas. 436, 492; Embury v. Conner, 3 N. Y. 511, 522; Lorillard v. Clyde, 122 id. 41, 41. Such is coneededly the claim of interest made by the objecting defendants in behalf of the persons alleged to have been omitted as necessary parties to this action. There does not, therefore, appear to be any reasonable support for the claim, nor any justification for the court’s refusal to proceed to final judgment in this action because of any interest outstanding in any person who will not be thereby concluded. The objection to final judgment upon the ground that a complete determination of the present controversy cannot be had without the presence of other persons as necessary parties is overruled, and the matter may be set down for a day certain to be argued upon the other points involved.

Ordered accordingly.  