
    SUPREME COURT.
    Amelia L. Farnam, plaintiff, agt. William M. Barnum and Charles N. Farnam, as administrators with the will annexed of Henry Parsons Farnam et al., defendants.
    
      Action—Parties—When one or more parties may sue or defend for the whole—Gode of Oivil Procedure, section 448—Oomplaint— Demurrer.
    
    An action may be brought by one of the next of kin of a deceased person “ on behalf of herself, and also for the benefit of all the heirs-at-law and next of kin of the said deceased, who will come in and contribute to the expenses,” against the personal representatives of the testator, to procure an adjudication upon the validity of his will, and to have a trust declared and established in favor of said lieirs-at-law and next of kin, as against the administrators with the will annexed and for equitable relief.
    •One next of kin may maintain an action of this character for the benefit of all.
    Where the question is one of a common or general interest of many persons, or where the persons who may be made parties are very numerous, it being impracticable to bring them-all before the court, then one may sue for the benefit of all. The word “ many ” is not used in section 448 of the Code of Civil Procedure to express the idea of very numerous p.ersons. There are two classes named, where one may sue for all. One is, where many persons have a common interest and another where the parties are so numerous that it is impracticable to bring them all before the court. While the word “many," as here used, contemplates more than one, it does not necessarily very numerous persons, while the word “many ” as ordinarily used is synonymous in meaning with “ numerous." As used in this section, in connection with the words “ common or general interest of the persons,” it means a limited number. It is the character of the interest which controls rather than the, number of persons. The third class mentioned “ very numerous,” one is allowed to sue for all, as a matter of convenience in the administration of justice by the court.
    Actions against administrators, as well as actions against assignees for the benefit ot creditors, brought to set aside an assignment, are exceptions to the rule that all parties having an equitable interest named by the decree, are necessary parties thereto.
    On a demurrer to a complaint the test of the unity of interest intended by the 448th section, is that the joint connection with or relation to the sub* ject-matter, which by the established practice of the common-law, courts will preclude a separate action.
    
      New York County, Special Term, May, 1885.
    This action is brought by the plaintiff on behalf of herself, and also for the benefit of all the heirs-at-law and next of kin of Henry Parsons Farnam, deceased, who will come in and contribute to the expenses of the action.
    The defendants’ administrators demur to the complaint upon the ground that it appears upon the face of the complaint that there is a defect of parties plaintiff or defendants, in that Charles 1ST. Farnam, individually, and Sarah H. Burr and Mary hi. Farnam, who in the complaint are alleged to be with Amelia L. Farnam, the only heirs-at-law and next of kin of the said deceased, are not made parties to the action.
    
      Louis A. Chandler (Dill & Chandler), for plaintiffs, made and argued the following points:
    I. The right of the next of kin to maintain this action is established by authority ( Wager agt. Wager, 89 N. Y., 161). Ho objection is made on this ground. The sole question here is whether one can sue for the benefit of all.
    II. One next of kin may maintain an action of this character for the benefit of all (Code, sec. 448). Section 448. Of the parties to the action those who are united in interest must be joined as plaintiffs or defendants, except as otherwise expressly prescribed in this act. But if the consent of any one who ought to be joined as a plaintiff cannot be obtained, he may be made a defendant, the reason therefor being stated in the complaint. And where the question is one of a common or general interest of many persons, or where the persons who might be made parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all. This section is substantially a transcript of section 119 of the Code of Procedure, as it was enacted in the year 1849. The last ■clause of section 119: “ And where the question is one of common or general interest of many persons * * * one or more may sue for the benefit of the whole,” is almost identical, word for word, with the section above cited (Laws of 1849, p. 639, sec. 119). The same question here presented arose in 1851 under a demurrer for defect of parties. Mary McKay left a will giving legacies to four persons named, and devising her estate, real and personal, to three other persons, ■charged as it was claimed with the payment of said legacies. One of the four legatees brought one action in equity for the benefit of all, against the administrators, with the will Annexed, and the residuary devisees,, alleging that the personal estate was insufficient to pay the debts and demanding judgment that the will be established and an account be taken; that the real estate be sold and the proceeds, together with the personal estate, might be applied in due course of administration in payment of the debts and legacies. To this complaint the residuary devisees demurred, on the ground that the other three legatees should have been made parties, plaintiff or defendant. The special term sustained the demurrer, but the general term reversed that judgment and overruled the demurrer holding that the intention of the legislature was to retain the former practice of the court of chancery, and that, when the question was one of common or general interest to several persons; the action might be brought by one or more for the benefit of all who have such common or general interest, without showing that the parties are- very numerous, or that it would be impracticable to bring them all before the court (McKenzie agt. L'Amoreaux, 11 Barb., 516). This decision has been repeatedly approved, and has stood for upwards of thirty years as a correct exposition of the practice under this section of the Code (Kerr agt. Blodgett, 48 N. Y., 66; Prouty agt. Railroad Co., 1 Hun, 667; Towner agt. Tooley, 38 Barb., 598). In such a suit the interlocutory judgment acts as a decree in favor of each person ■entitled to come in, whether he actually comes in or not, as effectually as if he had been named and appeared as a party (Kerr agt. Blodgett, 48 N. Y., 62-69). He is quasi a party; his cause is in the course of decision and he may at any time take an active part (Calvert on Parties, 58; Hubbard agt. Eames, 22 Barb., 601, 602). The Code contains express provisions for giving notice to these quasi parties to come in, which notice is to be in the form of a direction of the court contained in an order or judgment, and is to-be-published as the Code prescribes (Code, sec. 786). If, after due service of ■such notice they do not come in and contribute to the expenses of the action and take its benefits, they are barred of all further ■claim upon the fund in controversy and the administrators are effectually protected by the judgment (Kerr agt. Blodgett, 48 N. Y., 62; Hallett agt. Hallett, 2 Paige, 15, 19-21; Schuele agt. Reiman, 86 N. Y., 270, 273). The union of interest contemplated by section 448 of the Code is that of joint tenants, cotrustees, partners, joint owners or joint contractors simply (Jones agt. Felch, 3 Bosw., 63, 66). The next of kin of a deceased person or the distributees of a trust fund are not united in interest. They simply have a common interest in the fund, but each owns his undivided share separately. In such a case one may sue for the benefit of all, under section 448 of the Code, without regard to the question of number or inconvenience (McKenzie agt. L'Amoreaux, 11 Barb., 516 ; Hallett agt. Hallett, 2 Paige, 15; Towner agt. Tooley, 38 Barb., 598; Robins agt. McClure, 33 Hun, 368, 370; West agt. Randall, 2 Mason, 180). In Robins agt. McClure (33 Hun, 368) one next of kin sues for himself and all the others to determine the ownership of a lapsed legacy. The court ■entertained the action and the case is now in the court of appeals on the merits. The English courts always entertained actions by one next of kin for the benefit of all where it was inconvenient or impracticable to bring them all before the court, but the rule has not been so rigorous in this country (Story's Eq. Plead., secs. 89 to 91 and 105). In Caldecott 
      agt. Caldecott (1 Craig & Phillips, 183), Lord Cottenham held that “in order to enable the court to adjudicate upon the right to a residue of personal estate as between the next of kin as a class and a party claiming under a will, it is not necessary that all the next of kin should be present, provided the court be satisfied that some of them are parties to the record.” In West agt. Randall (2 Mason, 181), judge Stout, says: “ It seems the better opinion, that one heir-at-law or next of kin, suing for a distributive share of an estate cannot maintain his bill in equity, without making the other heirs or next of kin parties or showing them .to be without the jurisdiction or within some other exception. But the rule on this subject does not seem to be inflexible.” Unless the persons are within the jurisdiction it is not necessary to make them parties (Angell agt. Lawton, 14 Hun, 70 ; affirmed, 76 N. Y., 540). Here, as matter of fact, the next of kin are out of the jurisdiction. Mrs. Burr lives in Boston and the two Earnams in Connecticut. But it is not necessary to show that fact, unless the plaintiff sues for his share alone. Here he properly sues for the benefit of all. Under the Code of Civil Procedure the English rule is not the rule of decision. A more liberal practice prevails. Where the plaintiff is one of a class however small, who have a common interest, and institutes his suit for the benefit of all who will come in and share its burden and benefits, the action is properly brought and will be entertained. It would be very unjust to compel the plaintiff to make these other next of kin parties defendant. They could then have the benefit of the action, without sharing its expense or burden. That is no doubt the object sought by this demurrer, for one of the admininistrators is himself one of the next of kin. There is no defect of parties in this action. All of the next of kin are represented in the action commenced in the name of one for all. They are quasi parties, and can make themselves actual parties at any time by coming in and joining with the plaintiff. In due course of procedure the court will make the order or judgment provided for in section 786 of the Code, requiring them to come in and directing its proper service. If, after that, they elect to hold aloof, instead of coming in and sharing the burdens and taking the benefits of the action the judgment herein will be conclusive upon them and a complete protection to the administrators. The demurrer should be overruled with costs to be paid from the estate.
    
      Simpson, Thaoher dk Barnum, attorneys for defendants.
    
      WilUam M. Barnum and Charles JST. Farnam, as administrators.
   Lewis, J.

It is alleged in the complaint that Henry Parsons Farnam, late of the city of Hew York, deceased, made his last will and testament in 1873, and died December 3, 1884; that the defendants Barnum and Farnam were duly appointed administrators with the will annexed. That the testator was never married and left no descendant or ancestor surviving him, and that his only heirs-at-law and next of kin surviving him are Sarah H. Burr, his sister, and Amelia L. Farnam and Mary Farnam and Charles H. Farnam, the children of his brother Charles H. Farnam, who died in April, 1873, and that the deceased was at the time of his death the owner and in possession of a considerable personal estate, and of certain real estate in the city of Hew York and elsewhere. That in and by the will of the testator devisees were made in trust. That the trusts attempted to be created thereby are void, and that the whole estate of the testator, subject only to the payment of his debts in due administration, belongs to the heirs-at-law and next of kin and is their sole and absolute property, and the plaintiff claims that the administrators hold the same in trust for the next of kin and heirs-at-law of the deceased.

It further alleges that the question involved in the case is one of a common or general interest of many persons, and that the plaintiff brings the action not only on her own behalf, but for the benefit of all heirs-at-law and next of kin who will come in and contribute to the expenses thereof, and judgment is demanded declaring the said legacies to have lapsed in favor of the next of kin, and that the trusts attempted to be created are void and adjudging that the administrators hold all said personal estate subject to the payment of debts in due administration, and in trust for the said next of kin to be distributed according to the statute of distribution. And adjudging that the said heirs-at-law are owners in fee simple absolute of the real estate. The determination of the question raised by this demurrer depends upon the construction to be given to section 448 of the Code of Procedure, which provides that “of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants. * * * And where the question is one of a common or general interest of many persons, or where the persons who might have been made parties are very numerous and it may • be impracticable to bring them all before the court, one may sue or defend for the benefit of all.”

If Sarah E. Burr, Amelia L. Farnam, Mary E. Farnam and Charles Newell Farnam are united in interest in the questions involved in this controversy within the meaning of said section, then they all must be made parties to the action and the demurrer must be sustained. If the question is one simply of a common or general interest to them, then, the plaintiff may bring this action for the benefit of herself and others interested, and the demurrer should be overruled. This was the rule before the Code (See Barbour on Parties, page 331; Brown agt. Rickerts, 3 Johns. Ch., 553 ; Thompson agt. Brown, 4 id., 619 ; Ross agt. Crary, 1 Paige, 416; Hallett agt. Hallett, 2 id., 15).

The plaintiff and the persons whom-defendants insist should be made parties, being the heirs-at-law and next of kin of the deceased testator, if a decree be made pursuant to the prayer of the complaint, these defendants, instead of holding the personal estate for the purposes named in the will, will hold the same after payment of the debts of the deceased for the benefit of the next of kin, as their interests may appear. The real estate would descend to them according to the law of descent. Ho part thereof could be adjudged in this action to belong to any one of the persons named. If the object of the action were to obtain an adjudication that the whole or part of the estate belonged to the plaintiff or to the plaintiff and one or more, less than all of the other heirs-at-law or next of kin of the deceased, then it could be successfully maintained that all are necessary parties to the action, for they would have a joint interest in the question involved, but in this case they have only a common interest to have the bequests declared void, and such adjudication would inure to their common benefit. They have a like interest in the question as the judgment creditors of an insolvent debtor who had made a fraudulent assignment, would have in an action to set it aside • and have it declared void. Such creditors would have a common or general interest to have the assignment void, but their interest would not be united within the meaning of section 448 of the Code. One creditor may sue for herself and others similarly situated, to set aside the assignment without joining them as parties to the action (Hammond agt. Hudson River I. and M. Co., 20 Barb., 378; Petrie agt. Lansing, 66 Barb., 557).

When the question is one of a common or general interest of many persons, or when the persons who may be made parties are very numerous, it being impracticable to bring them all before the court, then one may sue for the benefit of all. The word “ many ” is not used in this section to express the idea of very numerous persons. There are two classes named where one may sue for all. One is where many persons have a common interest, and another where the parties are so numerous that it is impracticable to bring them all before the court. While the word “ many” as here used contemplates more than one, it does not necessarily very numerous persons while the word “ many” as ordinarily used is synonymous in meaning with. numerous ” As used in this section in connection with the words common or general interest of the persons ” it means a limited number. It is the character of the interest which controls, rather than the number of persons. The third class mentioned “ very numerous” one is allowed to sue for all, as a matter of convenience in the administration of j ustice by the court. This construction was given to this section in McKenzie age. L'Amoreaux (11 Barb., 516). This case has been referred to with approval and has not been disturbed by any'case to which my attention has been called. Under the practice that existed at the time of the adoption of the Code, this action could be maintained by the plaintiff in its present form (Brown agt. Rickets, 2 Johns. Ch., 553). Actions against administrators, as well as actions against assignees for the benefit of creditors brought to set aside an assignment, are exceptions to the rule that all parties having an equitable interest named by the decree are necessary parties thereto (Moore agt. Hageman, 6 Hun, 290). In Jones agt. Fetch (3 Bosw., 66) the court says : On a demurrer to a complaint we apprehend that the test of the unity of interest intended by the one hundred and nineteenth (448) section, is that the joint connection with or relation to the subject' matter, which by the established practice of the common-law courts will preclude a separate action.”

The demurrer should be overruled with costs, with leave to defendants to answer in twenty days from the service of a copy of this order, upon the payment of the costs.  