
    John H. Wood, an Infant, by William H. Eason, His Guardian ad Litem, and Lizzie M. Eason. Appellants, v. Nelson G. Fagan and Others, Respondents.
    Third Department,
    May 22, 1908.
    Wills—action to determine validity — parties—sufficiency of complaint.
    A complaint in an action under section 2658a of the Code of Civil Procedure to determine the validity of the probate of a will, which fails to allege that the parties, other than the husband, are the only next of kin and heirs at law of the deceased, and that deceased died possessed of real or personal property, does not state facts sufficient to constitute a cause of action.
    A husband and sister of a testatrix have a common interest in an action to invalidate her will, and may join as parties plaintiff.
    On sustaining a demurrer to their complaint it should not be dismissed on the merits, but leave should be given to amend.
    Appeal by the plaintiffs, John H. Wood, an infant, etc., and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Washington on the 12th day of November, 1907, upon the decision of the court rendered after a trial at the Clinton Special Term sustaining the defendants’ demurrers to the amended complaint and dismissing the said complaint upon the merits, and also (as stated in the notice of appeal) from an order entered in said clerk’s office on the 6tli day of November, 1907, directing the entry of the judgment appealed from.
    
      John Scanlon, for the appellants.
    
      O. A. Dennis, for the respondents.
   Chester, J.:

The action is for the purpose of determining the invalidity of the probate of the will and codicil of Amelia Griffin Wood. It was commenced by the husband of such testatrix and by one of her sisters as plaintiffs. In the complaint it is alleged that Amelia Griffin Wood died on the 27th day of July, 1905, leaving papers purporting to be her last will and codicil, and leaving surviving her husband, John II. Wood, and her sister, Lizzie M. Eason, the plaintiffs, and the defendants Lillian Hay Fagan, her sister, Nelson G. Fagan and Robert G-. Fagan; her nephews, and May C. Fagan, her niece. The complaint contains no allegation that the said parties plaintiffs and defendants, other than the husband, are the only next of kin and heirs at law of the testatrix. Ror is there any allegation that she died seized of any real or personal estate. The defendants demurred to the complaint for misjoinder of parties plaintiff on the ground that the husband, John II. Wood, is not shown to have a cause of action jointly with the sister Lizzie M. Eason, or to have any common interest with her in the subject of the action, because the plaintiffs have no legal capacity to sue, and because the complaint does not state facts sufficient to constitute a cause of action. The demurrer was sustained on all these grounds at Special Term, and final judgment was entered dismissing the complaint on the merits and the plaintiffs appeal.

We think the demurrer was properly sustained, because of the insufficiency of the complaint, but not because of the other grounds assigned. There is no force in the contention that the plaintiffs have no legal capacity to sue. It is true that they have failed to show any interest in the estate as heirs at law or next of kin, or otherwise, but that goes to the sufficiency of the complaint, rather than to their incapacity to sue, and there is no incapacity shown on the face of the complaint. So, too, we think there was no misjoinder of parties plaintiff. If, as is claimed, the husband is inter-, ested in the personal estate of the testatrix, and the sister as an heir at law in her real estate, they would not, of course, have a common or joint interest in the estate. But they would have a common interest in having the will declared invalid. The action is apparently brought under section 2653a of the Code of Civil Procedure, and the only questions which can be tried under that section are as to the validity or invalidity of the will and of the probate thereof. The only judgment prayed for in the complaint is one decreeing that the instruments purporting to be the last will and testament and codicil of the testatrix are not such in fact and establishing the invalidity of the probate thereof. We see no reason why as to these questions, the plaintiffs have not a common interest, and are not entitled to come into court and join together as plaintiffs. The court cannot, in this action, determine the amount of the interest of either of the plaintiffs in the estate. Section 446 of the Code of Civil Procedure provides that “ all persons having an interest in the subject of the action, and in obtaining the judgment demanded, may be joined as plaintiffs, except as otherwise expressly prescribed in this act.” There appears to be no other provisions in the Code that would make such a joinder as has been had here improper. Within the rule of equity practice these parties, if thej can show a common interest in invalidating the probate of this will, may be properly joined as plaintiffs. (Pom. Eq. Juris. [3d ed.] § 114; Blackett v. Laimbeer, 1 Sandf. Ch. 366; Foot v. Bronson, 4 Lans. 47.) The rule is also recognized in Gray v. Rothschild (48 Hun, 596). (See, also, Snow v. Hamilton, 90 Hun, 157.)

- The court in sustaining the demurrer did not give to the plaintiffs the usual leave to amend, but gave final judgment thereon dismissing the complaint upon the merits. What has been said with respect to the plaintiffs having a common interest in setting aside the probate of this will is based upon the supposition that if they are allowed to amend they can state facts showing such interest, which they have failed to do in the complaint as it now stands. We think, at least, they should have that opportunity afforded them in this action.

The order and judgment should be reversed, with costs to the appellants in this court, and interlocutory judgment directed sustaining the demurrer on the ground of insufficiency of the complaint, with costs to the defendants in the court below and with leave to the plaintiffs to amend their complaint on payment of the costs in the court below.

All concurred.

Order and judgment reversed, with costs to appellants in this court, and interlocutory judgment directed sustaining the demurrer on the ground of the insufficiency of the complaint, with costs to the defendants in the court below, and with leave to plaintiffs to amend complaint on payment of costs in the court below.  