
    Mary Conley, Stella Conley and Annie Conley, individually and as administratrix, etc., of Mary Conley, the elder, deceased, suing in behalf of themselves and all other persons beneficially interested in the estate of James Hernon, deceased, and all other creditors, if any, of Patrick Walton, deceased, Plaintiffs, v. Anna T. Walton, individually and as executrix, etc., of Patrick Walton, deceased, and as the administratrix with the will annexed, etc., of James Hernon, deceased, Richard S. Tobin, Charles Goeller and The Metropolitan Savings Bank, Defendants.
    (Supreme Court, New York Special Term,
    December, 1905.)
    Parties — Plaintiffs — Who may he joined — Those only who have the right to enforce an obligation or to recover property — Code of Civil Procedure, § 446.
    In order to join one as a party plaintiff, under the provision of section 446 of the Code of Civil Procedure, it is not enough that he have an interest in the subject of the action, but he must have a right to enforce an obligation or to recover property.
    The right, if any, to reach property of an estate converted by an executor is, so far as a deceased legatee is.concerned, exclusively in her administratrix; and her heirs-at-law and next of kin are not proper parties plaintiff to an action to recover the property so ■converted.
    Where the administratrix and the heirs-at-law and next of kin of a deceased legatee, as individuals, bring an action against an executor who has converted the funds of the estate to his own use, to set aside a conveyance of real property alleged to have been made without consideration, and in fraud of creditors and the persons beneficially interested in the estate, and upon a secret and illegal trust for the benefit of the executor and his family, which property it is sought to reach and have sold and the proceeds distributed among those entitled thereto, a demurrer to the complaint, upon the ground of misjoinder of parties plaintiff, in that no cause of action is stated in favor of such of the plaintiffs as sue individually, must be sustained.
    Degmubeer, to complaint. The opinion states the facts.
    Edward J. McGuire, for plaintiffs.
    Charles DeWitt Rogers, for demurring defendant.
   Giegerich, J.

This action is brought by the administratrix and the heirs at law and next of kin of Mary Conley, a deceased legatee of one James Hernon, the executor of whose will, Patrick Walton, is alleged to have embezzled funds belonging to the Hemon estate, and to have conveyed to the defendant, Anna T. Walton, his wife, without consideration, and with intent to cheat, defraud, hinder and delay his creditors and the. persons beneficially interested in the Her: non estate, and to create a secret and illegal trust for the benefit of himself and his family, certain real property which is sought to be reached and sold in this action, and the proceeds distributed among those entitled thereto. A demurrer has been interposed by the defendant Tobin upon the ground of misjoinder of parties plaintiff, in that no cause of action is stated in favor of such of the plaintiffs as sue individually. The demurrer must be sustained upon the authority of Havana City R. Co. v. Ceballos, 49 App. Div. 263. The principle of that decision, as I interpret it, is that, in order to join one as a party plaintiff under the provisions of section 446 of the Code of Civil Procedure, it is not enough that he have an interest in the subject of the action, but he must have a right to enforce an obligation or to recover property. The question of the necessity of such a right was not discussed in Peck v. Richardson, 12 Misc. Rep. 310, 17 App. Div. 618, where it was assumed that any one having an interest in the subject of the action could be joined as a party plaintiff. The fallacy of such position is clearly pointed out in Havana City R. Co. v. Ceballos, supra, where the court, at page 268, says: “ Many illustrations could be given where persons having am indirect interest in the enforcement of an obligation, or im the recovery of property, would have no interest in the subject of an action to enforce such obligation or to recover such property. Thus, the creditors and legatees or next of kin of a decedent in whose favor a cause of action existed, and the cestuis que trustent of a trust estate, axe interested in the property of the decedent or the trust; but the right of action to enforce obligations or to recover property vests exclusively in the executor or administrator or trustee, and the joinder of those who would be ultimately entitled to share in the property, or its proceeds, which would be collected in an action to recover such property, are not interested in the subject of the action in a sense that justifies their being made parties plaintiff thereto.” An attempt is made by the counsel for the plaintiffs to distinguish Havana City R. Co. v. Ceballos, supra, from the present case, and to use it as an authority in support of the complaint, by quoting from that opinion (at page 268) as follows: “To bring a person -within the provision of this section (446) it must appear that he has some interest, legal or equitable, in the particular property which is the subject of the action, or in the enforcement of the cause of action which is sought to be enforced.” This does not mean, as other portions of that opinion clearly show, that every person who has an equitable interest is entitled to be joined as a plaintiff. On the contrary, if such person is represented by a plaintiff who holds the legal interest covering such equitable interest, then such equitable beneficiary is not entitled to be joined and should not be joined as a plaintiff. It is only when the equitable interest would otherwise be unrepresented, or perhaps inadequately or imperfectly represented, that the possessor of such interest can be made a plaintiff. The principle of the decision in Havana City R. Co. v. Ceballos, supra, was approved and applied in Lawrence v. McKelvey, 80 App. Div. 514. It may be, as is urged by the counsel for the plaintiffs, that it would be valuable and useful to have the heirs and next of kin represented as parties in order to bind them by the judgment that may finally be rendered. Whether this would be possible by making them defendants is a question that is not presented now. Certainly they cannot be made plaintiffs under the decision above quoted. It is suggested that, as this action involves the title to real estate, the heirs should be parties. The property in suit was not land when it formed a part of the Hernon estate, however, but was personal property claimed to have been converted by the executor of that estate. The mere fact that the property sought to be reached is in the form of land manifestly cannot entitle the heirs to its possession under the circumstances. The right to reach that property, if there be such a right, still remains exclusively in the administratrix. The demurrer is, therefore, sustained, with costs, but with leave to amend upon payment of such costs within twenty days.

Demurrer sustained, with costs, with leave to amend upon payment of costs within twenty days.  