
    Evelyn Day Bruner, Appellant, v. Frank B. Torrey, as Executor, etc., of Edward Warren Day, Deceased, and Others, Respondents, Impleaded with Frederick C. Day and Others, Defendants.
    Second Department,
    December 2, 1910.
    Will —action to test validity — party — complaint.
    In an action to test the validity of a will and its probate an executor, who is also a legatee, should be made a party individually as well' as in his capacity as executor; but it is not necessary to describe him as trustee where,if he be .such, it. only follows by. legal implication .from the fact .that he is the executor.
    
      The ¡complaint in .such action is demurrable on the ground .that it does not, state facts sufficient to constitute a cause of action if it allege merely that certain persons made parties “ are the only persons entitled to any part of the estate.”
    Appeal by -the plaintiff, Evelyn Day Bruner, from an order of the Supreme Coui't, made at the Kings County Special Term and entered in -the office of the cleric of the county of Kings on the 1st day of October, 1910, -sustaining the respondents’ demurrers to the complaint.
    
      •George W. MeKenzie, for the appellant.'
    
      Benjamin A. Morton \_Perry D. Trafford with -him on the brief], for the respondents.
   Thomas, J.:

The action is to test the validity of a will .and its.probate. Two ■ defendants conceived nine grounds of demurrer to the complaint,, seven of which are bad. The reference to the earlier unprobated will is to account for the presence of certain persons who are alleged to claim interest thereunder, perchance, and went quite far:enough for-that purpose. The will is not probated, and Warner is .not -its executor, nor has an administrator of Layton Ellis Day 'been appointed. This, disposes of the second, -fifth, sixth and seventh grounds of the demurrer. Torrey as executor, not individually, is made a party. He is a legatee, and should as such be bound by the decree, and the record should be in such technical form as to show it; but there is no occasion to make him a party as trustee.' The will imposes upon him duties as executor, and by virtue of such office he will receive the property and' make disposition of it. If Torrey is a trustee, it by legal implication follows from his executor-ship. There is no occasion to describe him as such in the complaint. (Knox v. Metropolitan El. R. Co., 58 Hun, 517, 519; affd., 128 N. Y. 625.) This disposes of the fourth, eighth and ninth grounds of demurrer. • The complaint does not show that “ All the devisees,.legatees and heirs of the testator and other interested persons ” have been made parties. It is quite another thing to state that certain persons made parties “ are the only persons entitled to any part of the estate,” or that they are all the persons interested in the estate.” There might be different conclusions in that regard. It is convenient to observe the requirements of the statute, and it should be done. Therefore, the first ground of demurrer is tenable. The demurrers are'sustained upon the first and third grounds only, and the order appealed from should be modified to só state, and as so modified affirmed, without costs, with leave to serve an amended complaint upon the terms of the order appealed from.

Hirsohberg, P. J., Woodward, Jenks and High, JJ., concurred.

Order modified in accordance with opinion, and as so modified affirmed, without costs, with leave to serve an amend'ed complaint upon the terms of the order appealed from. 
      
      
         See Code Civ. Proc. § 3653a.— [Rep.
     