Peyser v. . Wendt

Rapallo, J. The complaint in this action was dismissed without prejudice, on the sole ground that Dora W. Peyser, the widow and administratrix, etc., of Max M. Peyser, deceased, was a necessary party, without whose presence a complete determination could not be had of the matters in controversy herein, and that, although the referee had given leave to the plaintiffs to bring her in as a party, and had ordered the cause to stand over for that purpose, the plaintiffs had refused to make her a party in any manner. If she was such a necessary party, we entertain no doubt of the power of the referee to make the order, and render the judgment appealed from. ( Van Epps v. Van Deusen, 4 Paige 75; Code of Procedure, § 272; Code of Civil Procedure, §§ 452, 1018.) In considering the question as to the necessity of making her a party, the referee passed upon the merits of various questions involved in the construction of the will of David M. Peyser, deceased. We do not think it necessary or advisable, at this stage of the case, to finally determine those questions. The widow of Max M. Peyser, deceased, is under the findings clearly entitled to succeed to his rights in the personal estate of David M. Peyser, deceased. It appears that, without reference to the question of the conversion of his real estate into personalty, he left personal property, and a part of the relief sought in this action *326 is an accounting and distribution of such personal property, and the appointment of a receiver thereof in the mean time. To this branch of the case, the widow and administratrix of Max M. Peyser is, beyond doubt, a necessary party. It is no answer to this, that the referee has found that the executor has not at any time had sufficient money to pay the legacy of fifteen thousand dollars to Carolina M. Kaasch. That finding does not establish that there are not more than sufficient 'assets to pay the legacy, but whatever should be its interpretation, it cannot conclude the representative of Max M. Peyser, in her absence, or protect the executor against a demand on her part for an accounting. She is entitled to be heard and adduce evidence, and the executor should not be compelled to account twice, nor could a final decree of distribution be made in. her absence. The further important question in the case, whether upon the death of Max M. Peyser his share of the real estate passed to his brother as his heir at law, or whether, under the terms of the will, he took a share of the proceeds, only, of such real estate, as personal property in remainder, expectant upon the death of the widow, is one in which the widow and administra-t’rix of Max M. Peyser, deceased, is directly interested, and it should not be determined in her absence. She was entitled to be heard upon the question, and the executor was entitled to a. judgment which, if adverse to her, would conclude her. Upon the question, whether the power of sale contained in the will, if construed to be imperative, is confined to the two-thirds of the real estate of the testator, or extends to the whole of it, we entertain considerable doubt of the correctness of the decision of the learned referee, but as this judgment only decides that the widow and administratrix of Max M. Peyser, deceased, is a necessary party to the action, we prefer to leave all the questions as to the construction of the will open for future adjudication. The judgment should be affirmed, with costs. All concur. Judgment affirmed.