
    Jane D. Brinkerhoff on Behalf of Herself and All the Other Heirs-at-Law and Next of Kin of Julia David Brown, Deceased, Plaintiff, v. Mary E. Tiernan, as Executrix of the Estate of John Brown, Deceased, Defendant.
    (Supreme Court, Kings Special Term for Trials,
    December, 1908.)
    Parties — Plaintiffs — One or more suing for benefit of all — Not applicable to action to determine validity of probate of will.
    Wills — Actions to annul or to determine validity of will — Procedure: Parties — One or more suing for benefit of all: Pleading — Complaint — Sufficiency.
    The provisions of section 448 of the Code of Civil Procedure, that, where the question is one of a common or general interest of many persons or where the persons who might be made parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all, are not applicable to an action to determine the validity of the probate of a will; nor do .they authorize the court to dispense with the requirement contained in section 2653a that all the devisees, legatees and heirs of the testator and other interested persons, including the executor or administrator, must be made parties to the action.
    
      In such a case, there is no practical difficulty in making all the parties interested actual parties to the action, either by joining them as plaintiffs with their consent or by making them defendants;- such of them as can be named may be named, and such of them as are unknown by name to the plaintiff may be brought into court under section 451 by the service of process.
    In such a case, where the complaint describes one of the defendants as executrix of the estate of the deceased and alleges that she is the sole executrix of the deceased and is named in said alleged will as the sole legatee and devisee, but there is no allegation that the deceased left any last will and testament which had been admitted to probate, nor that the defendant has been appointed and qualified as executrix of such will, the complaint does not state facts sufficient to constitute a cause of action, and a demurrer thereto upon that ground should be sustained.
    Demubbeb to complaint.
    Corbitt & Stern, for plaintiff.
    James W. & Charles J. McDermott (Charles J. McDermott, of counsel), for defendant.
   Carr, J.

In this action, which is brought under section 2653a of the Code of Civil Procedure, the plaintiff, claiming to be one of the heirs-at-law and next of kin of Julia David Brown, deceased, seeks to obtain a judgment setting aside the probate of an alleged last will and testament of said decedent. The section of the Code in question provides as follows, in part: “ Any person interested as devisee, legatee or otherwise, in a will or codicil admitted to probate in this State, as provided by the code of civil procedure, or any person interested as heir-at-law, next of kin or otherwise, in any estate, any portion of which is disposed of, or affected, or any portion of which is attempted to be disposed of, or affected, by a will or codicil admitted to probate in this State, as provided by the code of civil procedure, within two years prior to the passage of this act, or any heir-at-law or next of kin of the testator making snch will, may cause the validity or invalidity of the probate thereof to be determined in an action in the supreme court of the county in which such probate was had. All the devisees, legatees and heirs of the testator and other interested persons, including the executor or administrator, must he parties to the action.” In her complaint she describes herself as plaintiff “ on behalf of herself and all the other heirs-at-law and next of kin of Julia David Brown, deceased;” and she alleges that the question involved in the action “ is one of common and general interest to all the heirs-at-law and next of kin of Julia David Brown, deceased;” and further that “ the heirs-at-law and next of kin are very numerous and all of whom are nonresidents of this State and the names of some of them are unknown to the plaintiff and cannot with due diligence be ascertained by her, and, therefore, it is impracticable to bring them all before the court;” then, in a subsequent allegation of the complaint, she names some eight persons as being among the heirs-at-law and next of kin of the decedent. Hone of these eight persons is made a party plaintiff or defendant by name.

The defendant demurs to the complaint on the ground that the plaintiff has no legal capacity to sue for the various heirs-at-law and next of kin of the decedent, Julia David Brown; and on the further ground that there appears to he a defect of parties defendant, by reason of the failure of the plaintiff to join as parties defendant to the action the heirs-at-law and next of kin of the decedent whom she names in her complaint. The complaint is further demurred to on the ground that it fails to state facts sufficient to constitute a cause of action against the defendant. The question of her legal capacity to sue in the form in which she maintains her action and that of the defect of parties defendant are practically but one question under different aspects of presentation.

This form of action under section 2653a of the Code is entirely new and statutory. It is not in equity but at law. Wallace v. Payne, 9 App. Div. 34; Carolan v. O’Donnell, 105 id. 577. Its evident purpose is to gather together in one forum all the persons interested either in the probate or the contest of the last will of the decedent and to obtain a judgment finally concluding all mankind either for or against the will. Lewis v. Cook, 150 N. Y. 163; Long v. Rodgers, 79 Hun, 441. The section in question provides by most direct language that every person having an interest in or against the probate of the will must be made a party before the court.

The first question, then, arising upon the demurrer is whether or not the plaintiff can maintain this action under her pleading for the benefit of all the heirs-at-law and next of kin of said decedent. To justify her position she relies upon the language of section 448 of the Code of Civil Procedure, where it is provided as follows: “And where the question is one of a common or general interest of many persons; or where the persons, who might be made parties, are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.” By the allegations of her complaint she seeks to bring herself within the scope oE the provisions just quoted. Ho doubt she and all the other heirs and next of kin of the decedent have a common or general interest in procuring a judgment setting aside the will of the decedent. I do not think that the complaint shows that the parties are so numerous as to render it impracticable to bring them before the court. If, however, the plaintiff can sue as one having a common interest with others, the latter question becomes unimportant; as it has been held frequently that, where the interest is common or general, the number of parties so circumstanced is immaterial to the right of the plaintiff to sue for himself and those having a common interest. Section 448 of the Code of Civil Procedure is but a re-enactment of section 119 of the Code of Procedure, which in turn was, so far as the matter before quoted is concerned, but a statutory adoption and declaration of a rule well established in courts of equity for many years before the adoption of any Code practice. The qxiestion arises at once whether it was the intent of the Legislature to do anything further than to continue in statute form the preexisting rules of courts of equity. Innumerable cases may be found in this State where actions have been maintained by one plaintiff for the benefit of himself and others having a common interest, since the adoption of section 119 of the old Code. This court has, with some considerable labor, examined a very large number of such cases as they appear in the reports, only to find that each of them was one seeking equitable relief and so disposed of on the equity side of the court. Whether the rule declared in section 448 prevails in an action at law does not appear to have been raised or decided heretofore in this State. Since the submission of the briefs of the respective counsel, the court has had its attention called to the presentation of this question in 30 Cyc., where reference is had to the question involved and citations of several authorities outside this State are made to the effect that the rule of the Code applies as well to actions at law as in equity.

I think, however, that the Legislature had a special purpose in enacting section 2653a over forty years after the original enactment of section 448, and that the legislative purpose evidenced in section 2 653a would not be subserved by making all the provisions of section 448 applicable to an action of this kind. There is no practical difficulty in making all the parties interested in an action of this kind actual parties to the controversy, either by joining them as plaintiffs, with their consent, or by making them defendants. Such of them as can be named may be named, and such of them as are unknown by name to the plaintiff may be brought into court under section 451 of the Code of Civil Procedure by service of process. In that manner all the persons' interested may be made actual parties, as section 2653a seems to contemplate.

When we go back to the practice formerly existing under the rules of chancery with regard to actions by one plaintiff for all others interested in common, we find that such practice had definite limitations and restrictions, calculated to protect the actual rights of the persons who were sued for without being made parties by name. Where one sued in equity for the benefit of himself and of all others in common, any of the other persons was at liberty to bring a similar action in his own name, notwithstanding the pendency of the former one. The judgment in either action was interlocutory; and, after its entry in either action, all the other actions were stayed, and all were compelled to come in before the court in the action in which the interlocutory judgment had been obtained, and to establish and take their rights under it. Kerr v. Blodgett, 48 N. Y. 62; Brinckerhoff v. Bostwick, 99 id. 185; MacArdell v. Olcott, 62 App. Div. 127.

If the plaintiff thus suing on behalf of himself and others was defeated in the action, the judgment obtained therein operated as a bar against all the persons in whose behalf he sued, even though they were not before the court as actual parties. It seems quite evident to me that the Legislature, in furnishing an entirely new form of action under section 2653a, intended a form of remedy not in harmony with or in contemplation of the provision of section 448 of the Code of Civil Procedure, as quoted, and that the exception to the general rule as to making of the parties contemplated by section 448 does not apply to an action of this kind. If the plaintiff can maintain this action, for the benefit of others not named as parties but who have a common interest with her in setting aside the will, then, while her success will inure to the benefit of such persons, her defeat, through ignorance, bad judgment or general inefficiency, woxild likewise forever bar the individuals whom she represented in the action. I do not think that such a contingency was contemplated by the Legislature when it framed section 2653a of the Code of Civil Procedure.

This brings us to the consideration of the second question involved, whether the complaint states facts sufficient to constitute a cause of action against the defendant, The defendant is sued, “ as executrix of the estate of John “ Brown, deceased.” The complaint alleges generally that John Brown, deceased, obtained the probate of the last will of his wife, Julia David Brown, and that John Brown was the sole legatee and devisee of said Julia David Brown in the will which was admitted to probate. It further alleges that the estate of said Julia David Brown consisted of real and personal property. It then alleges that said John Brown is now dead. And that the defendant is the sole executrix of John Brown, deceased, who is named in said alleged will as the sole legatee and devisee of said Julia David Brown.” There is no allegation in the complaint that said John Brown left any last will and testament which had been admitted to probate, nor, if so, that the defendant has been appointed and qualified as executrix of said will. She is simply described as executrix of the estate of John Brown, deceased.” This is not a sufficient statement of fact against her; at most, it is but a conclusion of law. If she were actually executrix of the will of John Brown, deceased, there is nothing in the complaint to show whether John Brown died intestate as to the real property which he received by devise from Julia David Brown, nor whether he devised it himself in. turn; nor does it appear whether Julia David Brown left an executor; nor whether anything has passed from her estate into the possession of the defendant. If the defendant was properly shown to' be the executrix of the will of John Brown, deceased, it might be presumed that she took by legal title under the will of John Brown whatever personal estate there was coming under the will of Julia David Brown; but it cannot be so assumed that the real estate of Julia David Brown came to this defendant under any hypothesis, except by a devise under the will of John Brown; and nothing to that effect appears in the complaint. Even though the complaint were not demurrable on this ground, it is framed so in-artistically that, as a matter of orderly pleading, it should be amended voluntarily by the plaintiff so as not to leave the court subject to a situation, in which it might, on its own initiative, be compelled to bring in further defendants.

I think, however, that the demurrer should be sustained on both grounds, with leave to amend on payment of costs.

Demurrer sustained, with leave to amend on payment of costs.  