
    Hewitt et al. v. Hewitt et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    December 11, 1889.)
    Equity—Jurisdiction—Adequate Remedy at Law.
    A complaint in equity, by executors and trustees against the widow of their testator, alleged that defendant had converted to her own use property of the testator-in the state of Arkansas, under claim that testator was a resident of that state at. his death, and that she was entitled to the property, under the laws of that state. The prayer of the complaint was that the will of testator be established as the will of a resident of New York, and that defendant be decreed to pay plaintiffs the amount of property taken, and that she be enjoined from further interfering with plaintiffs in the execution of their trust. Held that, on the facts alleged, plaintiffs have no cause in equity; their remedy being adequate in an action at law.
    Appeal from special term, Clinton county.
    Action by Henry N. Hewitt and Nathan T. Hewitt, individually, and as-executors and trustees under the will of Nelson G. Hewitt, deceased, against Laura S. Hewitt, .John P. Hewitt, Louisa Hewitt, and Ann E. Calkins. The complaint alleges that Nelson G. Hewitt died in the county of Clinton, in this state, February 6,1887, without issue, leaving the defendant LauraS. Hewitt, his widow, surviving him; that the said testator was at the time of his death a resident of, and domiciled in, said county, and had been such resident, so-domiciled, for many years previous thereto; that about December 28, 1886, he made Ins last will and testament, and codicils thereto, whereby he devised and bequeathed all his real and personal estate to the plaintiffs, in trust, to pay over to his said widow, in quarterly payments, one-half of the annual net income of his said estate, not exceeding $2,400 per annum, during her life, and the balance of said annual net income to divide into four parts, and pay over-annually one of said parts to the defendant John P. Hewitt, one of said parts to the defendant Ann E. Calkins, one of said parts to the defendant Louisa Hewitt, and one of said parts to the plaintiff Henry N. Hewitt, and, after the decease of said Laura S. Hewitt, to con vert all said estate into money, and to divide and distribute three-fourths of the same among the persons entitled, at the date of said will, to the same, under the statute of distribution of the state of New'York, excepting the defendant John P. Hewitt, and loin vest the remaining one-fourtli, and pay over the income of the same to said last-named defendant during his life, and at his death to divide said one-quarter among the persons aforesaid, entitled to take under said statute of distribution of this state; that the plaintiffs are nominated in said will as executors thereof; that said will was proven and admitted to probate, all of the,defendants being duly cited, in the surrogate’s court, Clinton county, in this state, and letters testamentary have been issued to the plaintiffs; and that they have qualified, and entered upon the execution of their trust; that at the time of his death said testator was seised and possessed of considerable real and personal property in the state of Arkansas, and was also possessed of considerable personal property, notes, bonds, and instruments for the payment of money only, their being with him in said county of Clinton. Plaintiffs also allege, upon information and belief, that said will has been duly probated in the courts of the state •of Arkansas; that, by the laws of that state, plaintiffs may sue with the like effect as if they had been qualified under the laws thereof; that the plaintiffs have sent a promissory note, made by one Ward, amounting to about $7,000, into that state, to be collected for the purposes of their trust; that the defendant the widow of said testator has since his death, and since the plaintiffs have qualified and entered upon the execution of their trust, interfered with said personal estate of said deceased in the state of Arkansas, and received and taken about $500 of the same, and brought it into this state, where she uses and disposes of the same to her sole benefit, and has also claimed to have and dispose of for her own benefit the whole or a part of said Ward note of $7,000, and also claims, by and under the laws of said state of Arkansas, to have and take to her own use one-half of the entire personal property of the said testator, irrespective of the rights of these plaintiffs as executors and trustees; that the other defendants, the beneficiaries under said will, claim that the said will is the will of a resident of the state of Yew York, and that it is to be construed and interpreted as such, and that plaintiffs are accountable to them for said personal property, and that these plaintiffs should not yield to the claim of the said widow, that said testator was a resident of the state of Arkansas. Plaintiffs ask judgment of the court establishing said will as the will of a resident or non-resident of the state of Yew York, so that their duty in the premises may be determined; that, if the said will be determined to be the will of a resident of this state, the said defendant the said widow be decreed to pay the plaintiffs such amount of money or other personal property as she may have taken from said estate belonging to plaintiffs, and be enjoined from further interfering with the execution of their trust, and for such further relief as may be just, with costs. Said widow demurs to the complaint, and states in her demurrer, as grounds thereof—First. That the complaint does not state facts sufficient to constitute a cause of action. Second. That causes of action have been improperly united. “These plaintiffs should not have been joined in their individual capacity as plaintiffs with themselves in their capacity as executors or trustees. This defendant should not have been joined with others in the action.” Third. “That there is a misjoinder of parties plaintiff. They should not be joined in their individual and trust capacity.” Defendants appeal.
    Argued before Learned, P. J., and Landon and Putnam, JJ.
    Palmer, Weed & Kellogg, for appellants. Royal Corbin, for respondents.
   Landon, J.

Upon' the facts stated in the complaint, the plaintiffs have no •case in equity. They state facts showing a clear title in themselves, as executors and trustees, to the personal property of their testator, both in this state and in the state of Arkansas. They do allege that the defendant claims that the testator died a resident of the state of Arkansas, and that therefore she claims, by the laws of that state, that she is entitled to one-half of his personal property there situate. The plaintiffs allege no doubt in regard to the law of ■either state. They expressly allege that the testator’s residence and domicile were in this state at the time of his death, and the demurrer admits the facts ■alleged. The fact that the defendant claims that the testator was a resident of the state of Arkansas is immaterial. Her claim gives no advantage, and in no way impairs the rights of the plaintiffs. If she should be sued by the plaintiffs for the $500 of the testator’s estate which she obtained in Arkansas, and brought into this state, and should assert, in defense, that the testator resided in that state at the time of his death, the plaintiffs need only to prove the facts which they allege in this complaint, and which the demurrer admits, in order to establish his residence and domicile here. On their own showing, they are in no doubt or danger. They desire to tender the issue of domicile in this action, but the defendant is not legally bound to accept it. If she has a defense to a cause of action for conversion, it is her right to reserve it until the action be brought, and then she can resort to it or not at her option. The plaintiffs can invite the issue by bringing such an action. As all the questions raised depend upon that issue of fact, and as it rests with the defendant, and not with the plaintiffs, to prevent it, and as an action at law will suffice to determine it, the complaint states no cause of action. Interlocutory judgment reversed, with costs, and demurrer allowed, with costs. All concur.  