Sherwood v. Harbeck

Cullen, J.: The plaintiff brings this action to compel the defendant, as executor, to convey certain lands which plaintiff alleges were the subject of a paroi gift, to him by the defendant’s testator, on the faith of. which the lands were improved. The petitioners are legatees under the will of defendant’s testator. Upon affidavits alleging that "the lands sought to be reached by plaintiff were part.of .the residuary estate ■ of the testator and applicable to the satisfaction of their legacies, which in default of such application must necessarily abate, they applied to be made parties to the action. The Special Term granted the application) and from that order the plaintiff has appealed. We are somewhat embarrassed in the disposition of this appeal by the fact that the record does not contain the will-of the defendant’s testator. The complaint is singular. It alleges the gift, the entry and improvement of the lands by the pdaintiff. It also alleges that the defendant is executor of the will of the deceased donor. But it does not show what, if any, interest the defendant lias in the subject-matter. As executor he has nothing to do with the real estate. The action should have been brought against the devisees. On its face' it states no cause of action against the defendant. If there was any devise to the executor or any equitable conversion into personalty directed, it should have been pleaded. But though the complaint is defective in not being brought against the persons on whom the title to the land has apparently devolved, the applicants had the right to come into the suit if they have any lien on the land. It is averred in the moving affidavits that, under the will, it is the duty of the executor to sell the land in suit for the satisfaction óf the legacies to the applicants. If this is the case, then these legacies are charged on the realty. (Taylor v. Dodd, 58 N. Y. 343; Kalbfleisch v. Kalbfleisch, 61 id. 354.) If charged on the lands the legacies are specific liens (Kelsey v. Western, 2 N. Y. 500) and the applicants are necessary parties to the action. It may be that if we had the, will before us and knew exactly its provisions, we would come to a contrary conclusion. The order appealed from should be affirmed, with ten dollars costs. All concurred. Orders affirmed, with ten. dollars costs in one case and disbursements.