
    John C. Leggett, as Executor, etc., of Minerva P. Stevens, Deceased, Appellant, v. Addison S. Stevens, both Individually and as Administrator with the Will Annexed of William P. Stevens, Deceased, Respondent, Impleaded with Helen S. Eldridge, Appellant, and Others.
    
      Demurrer — not sustained on a ground not specified therein—when an executor has legal capacity to sue — interest of an executor’s executor in the construction of the original testator’s will —statement of a cause of action in equity.
    
    If the ground of objection specified in a demurrer to a complaint is not good, the demurrer cannot be sustained because of another defect in the complaint not specified in the demurrer.
    The. complaint in an action brought by the executor of Minerva P. .Stevens, deceased, against Addison S. Stevens, individually and as administrator with the will annexed of William P. Stevens, deceased, Helen S. Eldridge and others, alleged that William P. Stevens died leaving him surviving his wife, Minerva P. Stevens, his son, Addison S. Stevens, and an adopted child, Helen S. Eldridge; that his will provided: “ Third. I give my wife, Minerva P. Stevens, the use of ten thousand ($10,000) dollars for her own comfort and support, and she may use the whole principal sum of ten thousand dollars, and what is left at her death, after all her debts and funeral expenses are paid, shall be equally divided between my adopted daughter, Helen S. Eldridge, wife of Rufus O. Eldridge, if she is living; .if she has children, to go to them; if not, to go to my nearest akin on my side. * * *” 
      “Fifth. * * * I also give my wife, Minerva P. Stevens, two thousand ($3,000) dollars in addition to the above mentioned, and on the same conditions above mentioned, that is, the use;” that Addison S. Stevens and Minerva P. Stevens were duly appointed administrators with the will annexed of the said William P. Stevens, deceased, and that, as such administrators, they paid over to Minerva P. Stevens $13,000 in property and securities in full discharge of the legacy; that Minerva P. Stevens died while there remained in her hands of such legacy, $7,000 in securities and $1,500 in cash, which represented the proceeds of other securities; that she left a will by which she devised all of her property to the defendants Jepson and appointed the plaintiff sole executor thereof; that the plaintiff had duly qualified as such executor and had distributed all of the property which had come into his hands except the property which had come to his testatrix from the estate of William P. Stevens, deceased; that the defendant Addison S. Stevens, claiming as residuary legatee under the will of William P. Stevens, deceased, demanded that payment be made to him; that the defendant Helen S. Eldridge, also claiming to be entitled thereto under the will of William P. Stevens, deceased, demanded that all of such property be turned over to her; that the defendants Jepson, claiming under the residuary clause of the will of Minerva P. Stevens, deceased, demanded that the property be paid over to them, or that portion thereof which consisted of notes and cash.
    The complaint further alleged that the plaintiff was unable to determine to which of the parties he should pay the money, and that he desired the aid and instruction of the court as to his duty in tlm premises.
    The defendant Addison P. Stevens, both individually and as administrator with the will annexed of William P. Stevens, deceased, interposed a demurrer to the complaint on the following grounds: “First. That the plaintiff has no legal capacity to sue, in that he, as executor of the will of Minerva P. Stevens, deceased, has no interest in the will of William P. Stevens, deceased, or in its construction, or in the distribution of his estate. Second. That the said complaint does not state facts sufficient to constitute a cause of action.”
    
      Held, that the demurrer should be overruled;
    That, as the plaintiff was duly appointed executor of the will of Minerva P. Stevens, deceased, and was acting as such at the time of the commencement of the action, he had legal capacity to sue;
    That the complaint stated a cause of action of which some court had cognizance, and that the question whether the equity branch of the Supreme Court had jurisdiction was not raised by the demurrer interposed;
    That, aside from the form of the demurrer, the complaint stated a cause of action of which the equity branch of the Supreme Court had jurisdiction;
    That the rule that an executor of an executor has no interest in the construction of the will of the first testator does not apply in a case where the construction of the will of the first testator is necessary in order to enable the executor of the first executor to discharge the duties of his office.
    Appeal by the plaintiff, John O. Leggett, as executor, etc., of Minerva P. Stevens, deceased, and by the defendant Helen S. Eldridge, from a judgment of the Supreme Court in favor of the defendant Addison S. Stevens, both individually and as administrator with the will annexed of William P. Stevens, deceased, "entered in the office of the clerk of the county of Allegany on the 5th day of September, 1902, upon the decision of the court, rendered after a trial at the Allegany Special Term, sustaining said Addison S. Stevens’ demurrer to the complaint.
    Also an appeal by the plaintiff, John C. Leggett, as executor, etc., of Minerva P. Stevens, deceased, from an order bearing date the 2d day of September, 1902, and entered in the office of the clerk of the county of Allegany, granting the demurring defendant an extra allowance of $150.
    
      Harry E. Keller, for the plaintiff, appellant.
    
      Frcunh B. Church,, for the appellant Helen S. Eldridge.
    
      W. J. Wetherbee, for the respondent.
   McLennan, J.:

So far as material to note, the allegations of the complaint are that one William P. Stevens, a resident of Cuba, Allegany county, N. V., died on the 18th day of April, 1898, seized and possessed of certain real and personal property, leaving a last will and testament which was duly admitted to probate, and leaving him surviving his wife, Minerva P. Stevens, and his son, Addison S. Stevens, his only heir at law and next of kin, and the defendant Helen S. Eldridge, who sustained to him the relation of child; that Addison S. Stevens and the widow, Minerva. P. Stevens, were duly appointed administrators with the will annexed of the said William P. Stevens, deceased, and duly qualified and entered upon the discharge of their duties as such; that they, as such administrators, fully administered the estate of the deceased, paying all the debts, all the legacies, and the expenses of administration; that as such administrators they paid over to the widow, Minerva P. Stevens, plaintiff’s testatrix, $12,000 in full discharge of the legacy for that amount devised to her by said will; that such devise in the will, which is made a part of the complaint, is contained in the 3d and 5th provisions thereof, as follows:

“ Third. I give my wife, Minerva P. Stevens, the use of ten thousand ($10,000) dollars, for her own comfort and support and ■ she may use the whole principal sum of ten thousand dollars, and what is left at her death, after all her debts and funeral expenses are paid, shall be equally divided between my adopted daughter, ■ Helen S. Eldridge, wife of Rufus 0. Eldridge, if she is living; if she has children, to go to them, if not, to go to my nearest akin on my side. * * *”

Fifth. * * * I also give my wife Minerva P. Stevens two thousand ($2,000) dollars in addition to the above mentioned, and on the same conditions above mentioned, that is, the use.”

The complaint in substance alleges that after such legacies had been fully paid to Minerva P. Stevens by the delivery to her of property and securities, and while at least $7,000 of such securities were actually in her possession, and about $1,500 in cash, the proceeds of other securities delivered to her, she, on the 27th day of June, 1901, at the village of Cuba in said county of Allegany, died, also leaving a last’ will and testament, which is also made a part of the complaint, and by which she devised all her property to the other defendants named respectively, and appointed the plaintiff sole executor thereof; such will was duly admitted to probate, and > said executor immediately entered upon the discharge of his duties and took possession of all the property which was in the possession ■ of Minerva P. Stevens at the time of her decease.

It is further alleged in the complaint, in substance, that the plaintiff, as executor of the estate of Minerva P. Stevens, deceased, has paid all the debts, has paid and discharged all the specific legacies mentioned in the will, and has distributed all the property of which his testatrix died seized in accordance with the terms of such will, except the property or the proceeds of the property which came to her from the estate of William P. Stevens, deceased, all of which • is now in his hands; that as to such property the defendant Addison S. Stevens demands that the same be paid over and transferred to him, claiming to have become entitled thereto as residuary legatee under the will of William P. Stevens, deceased, upon the death of plaintiff’s testatrix and the termination of her life estate; that the ■defendant Helen S. Eldridge demands that all of such property be turned over to her, also claiming to be entitled thereto under and' by virtue of the will of William P. Stevens, deceased; that the defendants Enos P. Jepson, Dyer Jepson, Andrew Jepson and LewisJepson claim that all of the said twelve thousand dollar legacy now remaining, and especially the notes. and cash mentioned above as exceeding $1,500 in value, and including all interest which accrued, on the funds' of the said legacy up to the time of her death, whether the same had been paid or not, should be paid to them under the residuary clause of her will.”

It is further alleged in the complaint that the plaintiff as executor “ holds said securities, notes and money in trust for the person' or persons entitled thereto under said wills, and he is unable to decide as to .the rights of the persons claiming the same or some part thereof, and cannot safely pay the same over to either or any of’ them, and therefore desires the aid and -instruction of. this court as-to his duty in the premises; that it is doubtful if the Surrogate’s. Court would have complete jurisdiction of all the issues presented by this action, and he comes into this court under its equity jurisdiction so that complete justice may be done in the premises, and a multiplicity of legal proceedings be avoided, and to that end has-made parties hereto all the persons interested in the estate of both, decedents.”

The defendant Addison P. Stevens, both individually and as administrator with the will annexed of William P. Stevens, deceased, demurred to the complaint on the ground: “ First. That the plaintiff has no legal capacity to sue, in that he, as executor of the will of Minerva P. Stevens, deceased, has no interest in the will of William P. Stevens, deceased, or in its construction, or in the distribution of his estate. Second. That the said complaint does not state facts sufficient to constitute a cause of action.”

The learned trial court made its decision sustaining the demurrer, and from the judgment entered thereon this appeal is taken.

We think the demurrer should have been overruled. The first-ground of demurrer, “ that the plaintiff has no legal capacity to-sue,” is untenable. The case of Ward v. Petrie (157 N. Y. 301) must be regarded as decisive of this question. In that case the-court clearly pointed out the distinction between “ incapacity to sue ” and insufficiency of facts to sue upon. The court said t “Incapacity to sue exists when there is some legal disability, such. as infancy or lunacy, or a want of title in the plaintiff to the character in which he sues. The plaintiff was duly appointed receiver,, and has'a legal capacity to sue as such, and, hence, could bring the defendants into court by the service of a summons upon them, even if he had no cause of action against them. * "x * Incapacity to' sue is not the same as insufficiency of facts to sue upon.”

In the case at bar the plaintiff was duly appointed executor of the will of Minerva P. Stevens, deceased, and was acting as such at the time of the commencement of this action. He, therefore, had legal capacity to sue as such and, hence, could bring the defendants into court by the service of a summons upon them.

Are the facts stated in the complaint sufficient to constitute a. cause of action ?

In the case, of Sage v. Culver (147 N. Y. 241) the court said :: “ When a complaint is met by a demurrer on the ground of insufficiency, the question always is whether, assuming every fact alleged to be true, enough has been well stated to constitute any cause of' action whatever. * * * The pleading will be held to state all facts that can be implied from the allegations by reasonable and: fair intendment, and facts so impliedly averred are traversable in. the same manner as though directly stated.”

We think it clear that the complaint in the case at bar states a. cause of action of which some court has cognizance, and whether or not the equity branch of the Supreme Court has jurisdiction or the-power to grant the relief prayed for, or any relief, is technically not raised by the demurrer interposed. That question could only be raised under the second ground of demurrer specified in section. 488 of the Code of Civil Procedure, “ that the court has not jurisdiction of the subject of the action.” It has often been held that, if the ground of demurrer specified is not good, the demurrer cannot, be sustained because of another defect in a pleading not specified, in the demurrer. (Carter v. De Camp, 40 Hun, 258; Town of Mount Morris v. King, 77 id. 18.) But the demurrer in this case seems to have been disposed of by the learned trial court, as appears, by his memorandum of decision, upon the theory that a court of equity had no jurisdiction to grant relief upon the facts stated in the complaint. The court below said: “ I am' of the opinion that the plaintiff cannot maintain this action. It proceeds upon the: ■assumption that an executor of an executor is authorized to adminis-: ter the estate of the first testator, which is not the law of this State.”

And after citing Matter of Moehring (154 N. Y. 423) and other •authorities, the court said: “ The plaintiff as the executor of Minerva Stevens should proceed to an accounting in the Surrogate’s Court, and take the direction of that court as to. the disposition of this fund.” •

Without reference to the technical form .of the demurrer, the •question will be considered whether or not the plaintiff’s complaint ¡states a good cause of action in equity, and entitles him to the relief demanded. . . ' .

Stripped of all technicalities, the action has to do with about $9,000 worth of property, consisting of securities and of cash, the. proceeds of securities which were in the hands of plaintiff’s testatrix .at the time of her decease, and which came to her from her husband’s estate in accordance with the terms of his will, and which was paid, to her by the administrators, in full discharge of the bequests made to her. By the terms of. such bequests she was •entitled to use the income and all of the principal “ for her own ■comfort and support; * * * what is left at her death, after all her debts and funeral expenses are paid, shall be equally divided,” ■etc. Under those conditions, when the administrators .with the will •annexed of William P. Stevens, deceased, paid over the legacies of ■ $12,000 to plaintiff’s testatrix, they parted with all interest in •such fund as administrators, and they or the survivor of them,-as such, had no power .or authority to again take possession of the •same, and to distribute what remained after the life estate terminated. When the administrators paid over the amount of these bequests to plaintiff’s testatrix, they parted with all their interest in it as such administrators, and left the fund to follow the course ■directed by the will of William P. Stevens, deceased. (Smith v.

Van Ostrand, 64 N. Y. 278; Matter of McDougall, 141 id. 21.)

It will be remembered that the complaint alleges that the administrators with the will annexed “ thereupon promptly entered upon the -discharge of their duties as such, and the estate of the said William P. Stevens, deceased, was by them fully administered; and all the expenses of such administration, all the debts owing by the said William P. Stevens, and all the legacies set forth in his will were fully discharged and paid, and particularly the sum of twelve thousand dollars (less the transfer tax thereon) was on or about the 1st day of May, 1896, fully paid over to said Minerva P. Stevens by ■the said Addison S. Stevens, as administrator with the will annexed, in full discharge of the legacy of that amount to her, and that such payment was made in notes, bonds and mortgages.”

Upon such payment being made, as alleged in the complaint Minerva P. Stevens became trustee for the remaindermen of the fund during the continuance of her life. (Matter of Ungrich, 48 App. Div. 594; affd., 166 N. Y. 618.) And upon her death her •executor became charged with the duties of such trustee.

The counsel for the respondent urges that Minerva P. Stevens •could only have possession of the $12,000 fund as one of the administrators, but the trouble with such contention is that whatever the fact may be, the complaint alleges that it was paid over to her in discharge of her legacy, and, if paid as alleged, it could never again vest in the administrator.

The rule is well settled, as stated by the learned trial court, that an executor of an executor is not authorized to administer the estate of the first testator, and such executor has no interest in the construction of the will of such first testator. This is true unless such construction be necessary in order to enable such executor to discharge the duties of his office.

Such is precisely the case at bar. The plaintiff states in his complaint, in "substance, that he has about $9,000 in his possession, property left by his testatrix; that different parties are claiming such property or money, each claiming to own the same; one by virtue of the will of William P. Stevens, deceased; another by virtue of the same will, and others by virtue of the will of his testatrix, and by reason of such divers claims he states that he is unable to determine to whom the funds so held by him should be paid, and he asks the instruction of a court of equity.

Addison S. Stevens, the surviving administrator of William P. Stevens, deceased, has no claim upon the fund as such administrator. He simply stands in the place of an individual, and may properly claim that as an individual remainderman he is entitled to have such fund paid to him. In order to determine which of the claimants are entitled to the fund it will be necessary to construe the will of William P. Stevens, deceased, and when that is determined the fund will be paid to them, and not to the administrators, or the surviving administrator for distribution. A court of equity is the proper tribunal to settle these conflicting claims, and the plaintiff ought not to be put to 'the' hazard of paying1 to one claimant, as against another, except under the advice and direction of the court.

It is urged that the plaintiff should proceed to an accounting in Surrogate’s Court, and take the direction of that court as to the disposition of the funds in his hands. We think, to say the least, that, the authority of the surrogate to adjust the entire controversy between the parties to this action is doubtful, but without passing-upon that question, as it is not in any manner raised by the demurrer, we think that a court of. equity has ample power to-adjust all the matters in dispute between the parties, and that the plaintiff is entitled to its advice and instruction with reference to the disposition of the funds in his hands, referred to in the complaint.

The conclusion is reached that the plaintiff has legal capacity to-sue; that the facts stated in the complaint are sufficient to constitute a cause of action, and it follows that the judgment sustaining-the demurrer should be reversed, with costs of this appeal, with leave, however, to the defendant to answer the complaint within twenty days upon payment of the costs of this appeal. ' Having reached this conclusion, it follows that the order for the extra allowance should also be reversed.

Adams, P. J., Williams and Hiscock, JJ., concurred; Spring, J., not voting.

Judgment and order reversed and demurrer overruled, with costs,, with leave to the defendants to withdraw demurrer and answer upon payment of the costs of the demurrer and of this appeal.  