
    Henry N. Hewitt et al., Resp’ts, v. Laura S. Hewitt et al., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 11, 1889.)
    
    1. Wills—Action to establish as to domicil of testator.
    The complaint alleged that one H. died a resident of and domiciled in a county of this state ; that he left a will by which he devised all his property to plaintiffs, in trust, to make certain payments to his widow and to other persons ; that plaintiffs are his executors ; that he owned real and personal property in Arkansas, and that his will had been proved there ; that since his death his widow has interfered with the personal estate in Arkansas; has received some of it, and makes claims to more of it, to wit, a note sent there by plaintiffs for collection, and that, under the laws of Arkansas, the widow claims absolutely one-half of the personal estate, and upon the ground that the testator died a resident of Arkansas; that the beneficiaries, other than the widow, allege that the testator was, at his death, a resident of New York, and object to plaintiffs yielding to the widow’s claims, and plaintiffs ask judgment that the court establish the will as that of a resident or of a non-resident of this state, to the end that their duties in the premises be determined, and that in case it be determined that deceased was a resident of this state that the widow account for what she has received and be enjoined from further interference. On demurrer, Held, that the complaint did not state a cause of action.
    3. Same—Remedy of executor against adverse claim.
    The attempt of the plaintiffs is to tender the issue of domicil and residence, and this issue the widow, upon the facts stated, is not bound to accept in this action. If plaintiffs desire to raise the question they must sue her for the moneys claimed to have been received by her in Arkansas.
    Appeal from an interlocutory judgment overruling a demurrer by the defendant to the complaint.
    The complaint alleges that Nelson 0. Hewitt died in the county of Clinton, in this state, February 6, 1887, without issue, leaving the defendant, Laura S. 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 his 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 convert all said estate into money, and to divide and distribute three-fofirtks of the same amongst 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 to invest the remaining one-fourth, 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 amongst 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 seized 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, then 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 New York, and that it is to be construed and interpreted as such, and that plaintiffs are accountable to them for said personal p-operty, 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 Hew 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, that 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. u 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.”
    
      S. A. Kellogg, for app’lts ; Boyal Oorbin, for resp’ts.
   Landon, J.

Hpon 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 domicil 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 domicil here. On their own showing they are in no doubt or danger. They desire to tender the issue of domicil 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 present 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.

Learned, P. J., and Putnam, J., concur.  