
    Mary S. Benner, Ex’rx and Individually, App’lt, v. Charles H. Benner et al., Impl’d, Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 29, 1890.)
    
    1. Pleading—Pasties—Action to constele will.
    An action for the construction of a will must be brought by the executors or trustees, and cannot be successfully prosecuted by one alone for her individual benefit, although the other is not pecuniarily interested in the proceeds of the litigation, if successful, and the failure to make the co-executor a party is a ground of demurrer.
    2. Same—Costs.
    Where a demurrer is sustained only in part, each party virtually succeeds in part, and no costs should be allowed.
    Appeal from an interlocutory judgment in part sustaining and in part overruling a demurrer to the complaint.
    
      J. A. Shoudy, for app’lt; C. Bainbridge Smith, for resp’ts.
   Daniels, J.

So much of the demurrer was sustained by the judgment as was placed upon the objection that the defendant, Frank M. Bonta, who was an executor of the estate, had not been joined as a party plaintiff. It was not alleged that his consent could not be obtained to join him as a plaintiff, and on that account, if he united in interest with the executrix, in the subject of the action, he should by § 448 of the Code of Civil Pro. have been joined with her as plaintiff. The defect, if it existed, appearecl by the complaint itself, and accordingly furnished ground of demurrer.

It is clear enough from the complaint that the executor, Frank M. Bonta, had no pecuniary interest in any proceeds of the litigation resulting from a favorable determination of the action. But, whatever they might be, they would be to the advantage of the executrix, who is .the sole plaintiff. But whether she can maintain her claims to the extent that she has made them against the estate must depend wholly upon the construction which should be given to the will of the testator. The property of the estate is in the undisputed possession of the executrix and executor, so far as it may be affected by the action. But there was devised to her for her occupation and that of the minor children until they respectively attained their majority, in her lifetime, or she should remarry, a house and lot of ground owned by the testator at the time of his decease, which she might in writing select, together with useful and ornamental furniture that should be necessary, to be occupied and enjoyed by her and his minor children during their respective minorities, or until her decease, or she should marry again.

The house and lot No. 46 East Seventy-ninth street was so set apart and occupied by her until it became necessary for her to live more economically, and from that time she rented the house and stored the furniture, and claims that rent to the 9th of January, 1889, when the youngest child became of age, being a period of about nine years.

The will also directed that there should be set apart or invested the sum of $30,000, or one-third of the appraised value of the personal estate, as the plaintiff should elect, and the income, interest, profits and earnings thereof paid over to her in half yearly payments as long as she lived. She elected the investment of $30,000, which, with $10,000 more, was put into four per cent United States bonds, in November, 1878. These bonds were sold in November, 1888, at a profit' over the purchase price of $11,187.50, of which she claimed to be entitled to three-fourths. And the respondents questioned that right.

A question also arose as to her title to one-fifth of the share devised by the will of the testator to a deceased grandchild. And she has asked judgment for the construction of the will so far as it affects these claims and disputes. And whatever that construction shall be, it will dispose of her rights in these parts of the estate. And no further action of the court has been, or need be, invoked on her part, concerning these demands. If the construction shall be favorable to her, then she will retain these amounts out of the estate. If it shall be adverse, then nothing whatever will remain to be done. A complete end will be placed upon this part of the litigation by the construction that shall be adopted. That will meet the full extent and scope of the litigation.

Other claims are set forth in her behalf as executrix, as well as individually, not included in, or to be disposed of by the construction of the will. But excluding these claims, as that may properly be done, for the reason that so much of the complaint as relates to them, was not held to be demurrable, then the case depends wholly upon the construction of the will.

And to obtain that construction, it is very well settled that the action must be brought by the executors or trustees, and it cannot be successfully prosecuted by her alone for her individualhenefit. She might, of course, have sued to recover these amounts, if her right to them had been denied by the executor, and as an incident to that action the will would be construed. But that dispute has not arisen, and if it had, the action has not been brought in the form including that redress. But its object as to these claims is the construction of the will. And the right to maintain it in that form has been uniformly held to be vested in the executors, or trustees. Bailey v. Briggs, 56 N. Y., 407; Monarque v. Monarque, 80 id., 321; Weed v. Weed, 94 id., 243; Anderson v. Anderson, 112 id., 104; 20 N. Y. State Rep., 344. And in bringing that action this executor should have either been joined as plaintiff or made a defendant in case he withheld his consent. In obtaining a construction of the will for the proper administration of the affairs of the estate under it, he was equally interested with her. And the omission to include him in either way was a ground of demurrer.

As to the other portions of the complaint, the decision resulting in the interlocutory judgment has not been questioned by the appeal. At the trial of these issues of law each party virtually succeeded in part. The defendants expressly on the objection that the executor should have been a plaintiff, and the plaintiff by a clear implication, as the complaint was no farther pronounced defective, so far as the remainder of the complaint was included in the demurrer. The case in this manner was nearly equally divided, and it was, therefore, not one for costs, or if costs were to be allowed, then each party was equally entitled to them. But it was not equitable to give costs to one of the parties against the other, on this disposition of the case. And fo rectify the case in this respect, so much of the judgment as includes directions for costs, or for their payment as a condition to the right to amend, should be reversed and stricken out. And as thus modified the judgment should be affirmed, without costs of the appeal to either party. And the plaintiff should have leave to amend her complaint within twenty days.

Van Brunt, P. J., and Brady, J., concur.  