
    Nellie Garvey, Appellant, v. The United States Fidelity and Guaranty Company, Respondent, Impleaded with Francis J. Horgan, as Ancillary Executor of Richard Garvey, Deceased, and Others.
    
      Heir at lam claiming that a will admitted to probate was invalid because of her ancestor's incapacity — the invalidity of devises to charitable corporations must be pleaded—right of an heir at law, where there is an equitable conversion into personalty — a decree of another State admitting a will to probate — duty of a claimant to assert rights in that State— a surety on an executor’s bond cannot be sued until the executor is in default.
    
    'The complaint in an action brought by Kellie Garvey against Francis J. Horgan as ancillary executor of the estate of Richard Garvey, deceased, the United States Fidelity and Guaranty Company and others, alleged that Richard Garvey died a resident of the State of Massachusetts, leaving a pretended last will and testament which was void by reason of the testator’s incapacity to make the same; that the plaintiff was the sole heir at law and next of kin of Richard Garvey, deceased, who was one of the heirs at law of Andrew J. Garvey, deceased; that the said Andrew J. Garvey died seized of certain lands situate-in the city of New York, and that, by terms of his will, which was adtoitted to-probate in the county of New York, he devised such real estate to a trustee-upon certain trusts and gave the trustee power to sell and convey such real estate; that the trustee exercised the power of sale and that subsequently all off the parties interested under the will, except this plaintiff, entered into an agreement that the proceeds of the sale of the property should be divided and distributed among them in specified proportions; that, if Richard Garvey had. been alive, he would have been entitled to receive, pursuant to this agreement, the sum of $29,212.63.
    The complaint further alleged that the pretended will of Richard Garvey was. admitted to probate in the State of Massachusetts and that ancillary letters testamentary were„thereafter„:issued' to the executor named therein by one of the surrogates of ..the county of New York; that thereupon-the said sum’ of $29,212.63 was paid to such executor notwithstanding that the plaintiff had previously demanded that payment of such sum be made to her; that the-United States Fidelity and Guaranty Company was the surety upon the bond of the executor named in the will of Richard Garvey and was in possession of the fund. The relief demanded was that the plaintiff have judgment against the defendants for the amount of the fund.
    
      Held, that, in the absence of an allegation to that effect in the complaint, the; plaintiff could not raise the question whether devises to charitable corporations, contained in the will of Apdrew J. Garvey aggregated more than one-half of the value of the testator’s estate and were, therefore, invalid;
    That, aside from this question, the will of Andrew J. Garvey worked an equitable conversion of all the testator’s real estate into personalty and that nothing, therefore, descended under the will of Andrew J. Garvey which the plaintiff could take as heir at law;
    That the decree of the Massachusetts court admitting the will of Richard Garvey to probate was conclusive in the State of New York, and that,- as long as such, decree remained in force, the plaintiff, who was not mentioned in the will, was-not entitled to any portion of the estate of the said Richard Garvey;
    That the plaintiff was obliged to assert whatever rights she had in the fund in question in a proceeding in the courts of the State of Massachusetts;
    That the plaintiff could not maintain an action against the surety upon the bond of the executor named in the will of Richard Garvey until the liability of the-executor to respond to her had been established and he had failed to comply with the direction to pay over the fund.
    Appeal by the plaintiff, Nellie Garvey, from an interlocutory judgment of the Supreme Court in favor of the defendant, The* United States Fidelity and Guaranty Company, entered in the office of the clerk of the county of New York on the 6th day of June,,. 1902, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the said defendant’s demurrer to the amended complaint.
    
      Nelson J. Waterbury, for the appellant.
    
      Charles 11. Fuller, for the respondent.
   Hatch, J.:

The theory of the complaint in this action is that the plaintiff is éntitled to recover as the sole heir at law and next of kin of Richard Garvey, who was an uncle of the blood and one of the heirs at law of Andrew J. Garvey, deceased. The complaint avers that Richard! Garvey died a resident of the city of Boston in the State of Massachusetts on or about the 22d day of September, 1898, leaving a. pretended last will and testament, which was void by reason of the testator’s incapacity to make the saíne; that Andrew J. Garvey was. at the time of his death seized of certain lands and tenements situate in the city and county of New York, and that he left a last will, and testament which was duly admitted to probate by the surrogate of the county of New York as a will valid to pass real and personal property; that by virtue of its provisions and codicil thereto-attached he devised all of his said lands and property to a trustee-named in the will upon certain trusts therein specified; that the-said will and codicil gave to the said trustee full and complete-, power to sell and convey the whole of the real estate devised by the will; that after the admission of the will to probate the trustee-exercised the power of sale contained therein and sold the property :. that after the said will of Andrew J. Garvey was admitted to probate all of the persons and corporations entitled to take thereunder,, or claiming an interest under the will, except this plaintiff, entered into an agreement in writing before the commencement of this action whereby they agreed that the proceeds of the sale of said property should be divided and distributed among the persons and corporations entitled thereto in specified proportions, and that out of the said sums so realized $29,212.63 became payable to Richard Garvey, had he been alive to receive the same; that the said will of' Richard Garvey was procured to be probated by the legatees and: beneficiaries therein named and by the executor thereof in the Probate Court of Suffolk county in the State of Massachusetts, and that •after such probate an exemplified copy of the will and decree of probate was recorded in the surrogate’s office of the county of New York and a decree procured from one of the surrogates of said ■county for the issuance to the executor therein named of ancillary .letters testamentary upon the said estate; that thereupon there was paid over to said executor the aforementioned sum of $29,212.63 in ■disregard of plaintiff’s rights; that plaintiff demanded said sum of ■•the trustee named in the will of Andrew J. Garvey prior to its payment to the executor; that the United States Fidelity and Guaranty Company, a foreign corporation authorized to transact business in the State of New York, became surety on the bond of the executor •of the will of Richard Garvey, and now controls or has some interest in the fund and is in possession of the same. The complaint •demands judgment against the defendants for the before-mentioned -share, together with the costs of the action.

It is evident that the disposition made of' the demurrer by the learned court below is sound and should be sustained upon this •appeal. It is nowhere averred in terms in the complaint that the will of Andrew J. Garvey was invalid, nor is such fact made to .appear by any of the averments contained therein. Assuming that .the devises of property to charitable corporations under such will were of more than one-half of the estate and, therefore, invalid, it would be essential to establish such fact by proof, and a complaint ■which fails to aver it is bad. (Garvey v. Union Trust Co., 29 App. Div. 513.)

Aside from this consideration, however, it clearly appears from the will of Andrew J. Garvey that it worked an equitable conversion into personalty of all of his real estate. The devise was to a trustee, with power to sell and pay over the proceeds, and the averment of •the complaint is that this power was executed, and out of the execution arose the sum which the plaintiff seeks to recover in this action. 'The proceeds of the property is personalty, unimpressed with any ■character of real estate. (Horton v. McCoy, 47 N. Y. 21; Kalbfleisch v. Kalbfleisch, 67 id. 354.) There was nothing, therefore, which descended under the will of Andrew J. Garvey which the plaintiff could take as heir at law, and no right remains in her which -she could enforce in such capacity against such estate or the pro.-ceeds thereof. By the averments of the complaint it appears that the will of Richard Garvey has been admitted to probate in Suffolk •county, in the State of Massachusetts. The decree of said court admitting the will to probate is conclusive, and cannot be questioned in this State. (Mooney v. Hinds, 160 Mass. 469; Simmons v. Saul, 138 U. S. 439.) It is clear, therefore, that the executor named in such will became entitled to take as such, and he alone, •so far as the personal estate is concerned, is the legal representative of the heirs at law of Richard Garvey, and the right to have and receive the money is exclusively vested in him. The averments of the complaint are that the money was paid over to such executor, and if the plaintiff has any rights in and to this fund, she is required to invoke such legal remedies as may exist for the recovery thereof from the executor; but the money having been paid according to law to the person entitled to the custody thereof, no right of action -exists in her favor against the surety upon the bond of the executor until the liability of the executor to respond to her has been established, and he has failed to comply with a direction to pay over the ■same.

It also appears by the averments of the complaint that under and by virtue of the terms of the will of Richard Garvey the plaintiff herein is not entitled to have or receive any of such estate. She is not named therein as legatee, nor does she take anything thereunder. So long, therefore, as the probate of this will stands, she is ■concluded from taking anything, and as the testator resided in the State of Massachusetts, and the will is duly admitted to probate in that State and the executor has qualified thereunder, she must be limited in whatever rights she has in and to this fund to a proceeding in the courts of Massachusetts. It is sufficient to say now that not only does the complaint fail to show a case entitling her to recover this fund, or any part of it, as heir at law or next of kin of Andrew J. Garvey, but by its affirmative averments she has succeeded in showing that in each capacity she has no standing to maintain this action. In addition thereto, she seems to have gone further, and also by affirmative averments established that she has no right to have or receive any of this fund. So long as the decree of probate of the will of her ancestor stands unreversed, she is not entitled to take in any capacity whatever.

It follows that the interlocutory judgment should he affirmed, with costs, and that the plaintiff be permitted to plead over within twenty days upon payment of the costs of this appeal and in the court below.

Van Brunt, P. J., Patterson, Ingraham and Laughlin, JJ., concurred.

Judgment affirmed, with costs, with leave to plaintiff to plead over on payment of costs in this court and in the court below.  