
    Eliza L. Moore, Respondent, v. Marie Louise Moore, Individually and as Temporary Administratrix, etc., of Gideon E. Moore, Deceased, Appellant.
    
      JResulting trust — the holder of the legal is a necessary pac'ty to añ action to enforce it — what is not an admission that an instrument set forth in a complaint is a copy of a duly executed will'.
    
    In an action to enforce' a resulting trust in lands, alleged to have "been purchased by a decedent with moneys of the plaintiff, the person in whom the legal title to the' land vested upon the decedent’sj death is a necessary party, and it is incumbent upon the plaintiff to establish title in such person.
    
      Queers, whether artemporary administratrix of the decedent is a necessary party.
    "Where the complaint in an action allegjes that “a certain paper or writing, a copy of which is hereto annexed, marked- Exhibit ‘A,’ and made a part of this complaint, has been heretofore offei'pd for probate by the said Mai-ie Louise Moore (the defendant), the widow-of Gideon-E. Moore, as and for the last will' and" testament of the said Gideon E. Mejore, deceased, in the office of the surrogate of the said city and county of Njew York,” a statement in the answer to the effect that ‘-the defendant admitsj each and every allegation in paragraph of said complaint, numbered second, except the allegation that Exhibit A; . -annexed to the complaint, is a Copy of the last will and testament - of' Gideon E. Moore, deceased,, and defendant, for greater certainty, begs leave to refer to the original of said Exhibit‘A,’or the-record thereof in thg office of .said surrogate, when the- same shall have l>een produced and proven,”- is not an admission that the instrument designated as Exhibit A was a copy of the duly executed will of Gideon E. Moore, but simply an admission that the defendant has offered such an instrument for prolate, claiming it to be such last will and testament. !
    Appeal by the defendant, Marie Louise Moore, individually and as temporary administratrix, etc., of Gideon E. Moore, deceased, from an interlocutory, judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Flew York on the 28th day of February, 1899, upon the decision of the court rendered after a trial at the Flew York Special Term.
    The instrument alluded to in the complaint as having been offert. d for probate as the last will and testament of Gideon E. Moore, deceased, purported to convey to the defendant, Marie Louise Moore, • his wife, all his estate, both real and personal, “ for her exclusive . use and benefit in case she should survive me, or for the use and benefit o£ her children, should she have issue.”
    
      James A. Dumn, for the appellant.
    
      Henry E. Howland, for the respondent.
   Rumsey, J.:

The action was brought to enforce a resulting trust, claimed to have arisen in favor of the plaintiff in lands owned by Gideon E. Moore, deceased. It was alleged that the plaintiff, who is the mother of Gideon E. Moore, had sent to him at various times considerable sums of money for investment, and that he had used the money to purchase lands and had taken title to them in his own name without the knowledge of his mother. The plaintiff claims that because of these- facts a trust had resulted in her favor against the lands so held in the name of Moore. (Day v. Roth, 18 N. Y. 448 ; Lounsbury v. Purdy, Id. 515; Gilbert v. Gilbert, 2 Abb. Ct. App. Dec. 256.)

The first objection of the defendant is that this action could not be maintained against her as temporary administratrix. The cause of action exists primarily against the persons having title to the lands. The effect of a judgment is practically to divest them of title, or, at least, to charge the lands with a trust to the amount of money invested in them. Where such an action is brought against the heirs at law or devisee of the person because of whose default the resulting trust arises, it may be quite proper that his personal representatives should be joined in the suit. Whether that be so or not it is not necessary to determine in this action, because the fact seems to be that since the action was begun the defendant has been appointed administratrix with the will annexed, and her powers and duties as temporary administratrix have expired. As we have found it necessary to reverse this judgment upon other grounds, we need not pass, upon the rights of the personal representatives until the administrator in chief shall have been substituted.

As this action operates solely upon title to lands, it is necessary either that the heirs at law or the devisee of Gideon" E. Moore should be made parties, and before the plaintiff is entitled to.recover she must show that the title to the land sought to be affected has vested in the defendant. In this regard the case made by the plaintiff was fatally defective. Marie Louise Mooré was the wife of Gideon E. Moore. The heirs at law are not. parties to the action. It was alleged in paragraph 2d of the complaint that a certain paper or writing, a copy of which is hereto annexed, marked Exhibit ‘ A ’ and made a part of this complaint, has been heretofore offered for probate by the said Marie Louise Moore, the widow of Gideon E. Moore, as and for the last will and testament of the said Gideon E. Moore, deceased, in the office of the surrogate of the said city and county of New York, and that a citation to .attend said probate has been served upon the plaintiff above named.” The Exhibit A referred to therein puiports to be. the last will and testament of Gideon E. Moore. All the allegations in regard to it are quoted above. No proof was made upon the trial respecting any such paper, nor was any such paper offered in evidence. But the plaintiff relied, as establishing the existence of that paper as the last will and testament of Gideoh E. Moore, upon the following admission contained in the answer :

“ The defendant admits each and every allegation in paragraph of said complaint numbered ‘ Second,’ except the allegation that Exhibit ‘ A,’ annexed to the complaint, is a copy of the last will and testament of Gideon E. Moore, deceased, and defendant" for-greater certainty begs leave to refer to the original of said Exhibit 6 A ’ or the record thereof in the" office of said surrogate when the same shall have been produced an4 proven.”

The plaintiff claims that this is an admission of the due execution of the will set out in the complaint as Exhibit A. To this contention we do not accede. There is no allegation in the complaint that Gideon E. Moore ever executed a last will and testament,. The allegation simply is that the defendant has offered a certain paper, claiming it to he- such last will and testament. The admission goes no further than the allegation, and all that can be claimed for it is that the defendant admits that she has offered for probate, a certain paper as and for the last will and testament of Gideon E. Moore, deceased. That such paper is the last x will and testament is not alleged, nor is it conceded by the answer, nor does the answer con- - cede that a true copy of the paper so presented is contained in the complaint. Before the plaintiff could recover it must have been made to appear that Marie Louise Moore was the devisee of Gideon E. Moore and, as such, had the title to this real estate. To do that she must not only allege, but establish the fact, that Moore duly executed his last will and testament. This was not alleged ; it was not admitted; there was no proof that Exhibit A in the complaint was such a paper as it was claimed to be, and for that reason the. plaintiff’s case was fatally defective.

The judgment should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Bbunt, P. J., Babeett, O’Bbien and McLaughlin, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.  