
    Allen Rathbun, Individually and in Behalf of the Estate of Thomas Hunt, Deceased, Plaintiff, v. A. C. Dennis Brownell and Alice Fort, as Executors of the Last Will and Testament of Sophia Gifford, Deceased, and Ruth Hunt, Individually and as Executrix of the Last Will and Testament of Thomas Hunt, Deceased, Defendants.
    (Supreme Court, Saratoga Special Term,
    March, 1904.)
    Place of trial, Code Civ. Pro., § 984 — When a party to an action is a necessary and proper one and the action is-properly brought in the county of her residence.
    Under a complaint of a residuary legatee of a testator alleging that his executrix, made a defendant in the action, entrusted estate money to one Sophia Gifford, since deceased, that she invested it in her own name and attempted to dispose of it by her will and that the executrix has upon request refused to bring an action against the defendant executors of Gifford to procure restoration to the estate, the executrix is a necessary and proper party to the action as she has a right of action against her codefendants, payment of the fund if recovered must be made to her, and she is entitled to contest the allegations of the complaint in respect to her conversion of the estate property and her failure to perform her duty as executrix.
    Such an action is governed by Code Civ. Pro., § 984, is properly brought in the county of her residence, and the executors of Gifford are not entitled under that section to change the venue to the different county of their residence as being the proper county.
    
      Motion by the defendants Brownell and Fort for an order changing the place of trial from the county of Rensselaer to the county of Washington as the proper county.
    J. Sanford Potter, for defendants Brownwell and Fort, for motion.
    Peck & Behan, for defendant Ruth Hunt, consenting.
    James Lansing (John B. Holmes, of counsel), for plaintiff, opposed.
   Spencer, J.

This action is brought by the plaintiff as a residuary legatee of the estate of one Thomas Hunt, to compel the defendants Brownell and-Fort, as executor and executrix of the last will and testament of Sophia Gifford, deceased, to pay over to the defendant Ruth Hunt, as executrix of the last will and testament of Thomas Hunt, deceased, the sum of $31,500, which the plaintiff claims came into the possession of the defendants Brownell and Fort as the result of a conversion thereof by Sophia Gifford and the defendant Ruth Hunt.

Ruth Hunt resides, in the county of Rensselaer and all the other parties reside in the county of Washington.

The defendants Brownell and Fort make this motion to change the venue to Washington county as the proper county, on the ground that Ruth Hunt is neither a necessary nor proper party. They cite the case of Lane v. Bochlowitz, 77 App. Div. 171, as an authority for their contention.

The complaint alleges that Ruth Hunt is executrix of the last will and testament of Thomas Hunt; that as such, she came into possession of about $44,000, belonging to his estate ; that she is old and feeble in body and mind; that she intrusted the property to Sophia Gifford, who invested the same in.her own name, to the extent of $31,500; that Sophia Gifford, by her last will and testament, attempted to dispose of said property; that the defendants Brownell and Fort are the executor and executrix of her last will and testament ; and that plaintiff has requested Ruth Hunt to bring the action to restore the property to the estate represented by her, which she has refused to do.

This action is not one of those specified in sections 982 and 983 of the Code of Civil Procedure, and is, therefore, in respect to the trial county, regulated by the provisions of section 984, which provides that the action must be tried in the county in which one of the parties resides at the commencement thereof. The case of Lane v. Bochlowitz, supra, relied upon by the moving parties, is an. adjudication that a party in interest who is not a party to the record is not to be regarded as one of the parties to the action within the intent and meaning of section 984. Such also is the holding in Brown v. Bache, 66 App. Div. 367; 72 N. Y. Supp. 687.

These decisions, I think, are in conflict with the contention of the moving parties. Nevertheless, I am prepared to agree with them, that where it clearly appears that a party to the record is not a proper or necessary party, having no interest or duty in the controversy, his residence on a motion of this character may be disregarded. If this were not so, a plaintiff might locate the trial in any county, by making a resident of such county party to the record, and thus defeat the purpose of the statute.

I think, however, that Ruth Hunt is a proper and necessary party to this action. Peck v. Richardson, 12 Misc. Rep. 310; 33 N. Y. Supp. 1107; Stone v. Demarest, 67 App. Div. 549; 73 N. Y. Supp. 903; Hamilton v. Faber, 33 Misc. Rep. 64; 68 N. Y. Supp. 144. These were not suits such as the present and, therefore, not directly in point; but the reasons for the decisions therein support the position here taken. If the facts alleged in the complaint be true, Ruth Hunt had a right of action against her codefendants, and it was her duty, in her representative capacity, to have instituted suit. Had she done so, her residence would have been controlling on the question of venue. Bacon v. Dins-more, 42 How. Pr. 368. How is the situation changed by reason of the fact that she has refused to perform her duty, and that the plaintiff in order to protect his rights has been compelled to institute the suit? His right to maintain the ac-

tion seems reasonably clear. Anderson v. Daley, 38 App. Div. 505, 56 N. Y. Supp. 511.

It is true no relief is asked as against her; no attempt is made to hold her personally responsible for the alleged conversion, but in case a recovery be had, it is to her, in her official capacity, that payment and delivery of the fund will be directed to be made. Furthermore, the plaintiff's right to maintain the action is dependent upon her refusal so to do; and she has a right to traverse the allegation in respect to the conversion of the property by her, and also the allegation that she has refused to perform her duty as executrix. A complete determination of the question1 involved could not be had, without her presence before the court.

I am, therefore, of the opinion that the motion to change the venue cannot prevail. Motion denied with costs.

Ordered accordingly.  