
    Warren Bryant et al., Ex’rs, App’lts, v. __rriet E. Tracy Thompson, Impl’d, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 16, 1891.)
    
    1 Appeal—Dismissal.
    It is only where time may be gained and the appeal disposed of before the case in chief can be presented that a special motion to dismiss the appeal should be deemed available to the respondent, and that too only in a clear case, where the sole ground of the motion is that the person appealing, though a party to the suit, has no interest in the question presented by the appeal.
    2. Same—Pabty aggbieved.
    The expression “party aggrieved” used in the statute does not necessarily, and in all cases, mean a party who has a direct pecuniary interest in the question. An executor having the right to bring an action for construction of a will so as to obtain instructions as to the party entitled to be paid the fund in question, is a party aggrieved in the event of a decision against the advice of counsel, and may appeal therefrom.
    Motion by the defendant to dismiss the appeal of the plaintiffs.
    
      John M Parsons and Charles Robinson Smith, for resp’t and the motion; John 6r. Milburn, for app’lts, opposed.
   Macomber, J.

The motion to dismiss the appeal of the plaintiffs is made upon the ground that the appellants are not parties aggrieved •within the meaning of § . 1294 of the Code of Civil Procedure.

This ' action was brought to obtain a judicial construction of portions of the last will and codicils of Francis W. Tracy, deceased, and for instructions in regard to the plaintiffs’ duties as trustees under such will. The plaintiffs, together with the defendant Agnes Ethel Tracy, are the executors and trustees. The testator died on the 15th day of April, 1886, leaving a last will with four codicils thereto. There survived him his widow, Agnes Ethel Tracy, and his only child and heir at law, Harriet F. Tracy Thompson, the respondent, the latter an infant between eighteen and nineteen years of age at the time of her father’s death.

The testator left a large estate consisting of both real and personal property. By the terms of the second item of the second codicil, the sum of $100,000 was set apart and placed in the hands of the trustees, the income of which, or the greater portion thereof, was directed to be paid to the daughter during her lifetime. By the fifth paragraph of the same codicil, in case his daughter, either personally or by another, contested the probate of the will, all provisions made for her were to be revoked and the bequest bestowed upon the widow. The special guardian appointed by the surrogate of Erie county did contest, though unsuccessfully, such probate. -This action is therefore brought by two of the executors and trustees under the will, to determine whether the bequest to the daughter still stands or whether it was not revoked by the contest of the will made in her behalf by her special guardian. ^ For a fuller statement of the facts I refer to our opinion, herewith handed down, in this case upon the question of the validity of the revoking clauses of the will. The widow declining to become a party plaintiff from considerations of family delicacy, was made a defendant, both individually and as in her representative capacity, but she has not made answer or otherwise defended the action. Her pecuniary interests obviously lie with the claim made by the plaintiffs, for if their contention be legally correct a judgment in their favor would enure wholly to her benefit.

This motion was not brought to a hearing until the merits of the appeal were argued, and both questions were presented together but in separate briefs, counsel sending in additional or supplementary briefs upon the motion since the adjournment of the court. The practice of making special motions to dismiss appeals upon the ground stated ought not to be encouraged; for if, upon examination of the principal case, it is found that the appellants had no standing in court it would be our duty to dismiss the appeal without the intervention of motion made by the respondent on notice. It is only where time may be gained and the appeal disposed of before the case in chief can be presented, that a special motion to dismiss the appeal should be deemed available to the respondent, and that too only in a clear case where the sole ground of the motion is that the person appealing, though a party to the suit, has no interest in the question presented by the appeal.

The motion, however, should be denied on its merits. No one could reasonably contend that the action itself was not necessary, or properly brought. Careful .trustees, under the circumstances presented by this case, could not be expected to incur the hazard of deciding to whom they should pay over the income of this sum of $100,000. If they paid it to the daughter, the widow might make reclamation upon them and vice versa. Hence it is, in order to obtain a correct and binding execution of the trusts and other provisions of wills, this court is clothed with that equity jurisdiction through which an authoritative decision of practical questions arising may be anticipated for the safety of the executor, trustee, cestui que trust or beneficiary. Article 6, § 6 of State Constitution; 3 Pomeroy Eq. Jur., 1156, and cases there cited.

Being entitled to bring this action in one branch of this court for instructions in the premises, I know of no reason why the trustees are not equally entitled to take the opinion of the general term of that court, if in the exercise of their judgment and under advice of counsel they see fit to do so.

The expression “party aggrieved ” used in the statute does not necessarily and in all cases mean a party who has a direct pecuniary interest in the question, in the sense that if one construction of the will be adopted he gets a bequest, and if another, he does not. If under § 446 of the Code of Civil Procedure relating to the joining of parties plaintiff, the appellants “ had an interest in the subject of the action, and in obtaining the judgment demanded,” as they clearly had, how can it be said that they are not “ aggrieved ” within § 1294, relating to parties to appeals, if they are advised that they should not be content with the decision of the special term, but should take the opinion of the general term as well ? Having a cause of action in one branch of the court, there seems to be no reason, in the event of a decision there against the advice of counsel, why they should not be deemed “ aggrieved ” so as to enable them to demand the decision of the appellate branch of the court.

The motion should be denied, with ten dollars costs.

Dwight, P. J., and Corlett, J., concur.  