Littell v. Sayre

Gilbert, J.: We think the demurrer in this case was properly overruled. The reasons which appear in the opinion of the court below are satisfactory. It may be added that the action is for an account. No other cause of action is set forth in the complaint. When different persons are interested in an account, although not in the same right, they may, and in most cases should, all be joined. (Story Eq. Pl., § 219; Richtmyer v. Richtmyer, 50 Barb., 55.) The causes of action against the several defendants are consistent with each other, and they all arose out of transactions connected with the same subject of action, namely the liability of Henry Sayre, deceased, as guardian of the infant plaintiffs. (Code, § 167.) The complaint sets forth facts sufficient to show the liability of both defendants who demur, to account. They cannot raise the question of the sufficiency of the complaint as respects the other defendants. (Richtmeyer v. Richtmeyer, supra.) It is a sufficient answer to the objection that an action cannot be maintained against heirs or devisees and the executor or administrator of a deceased person, jointly, under the provisions of the Revised Statutes, that such rule does not apply where the creditor has established his demand before the surrogate, and the personal estate left by the deceased has been concealed or wasted. In such a case the executor or administrator may be called to account in a court of equity, and the heir or devisee has a direct interest in the taking of such account. The remedy for the omission to describe the lands which descended to the heirs, is by motion to make the complaint more definite and certain, and not by demurrer. We think the order should be affirmed, with costs. Smith, J., concurred. Mullin, P. J., did not vote. Order affirmed, with costs.