Hitchcock v. Linsly

This action is brought against the defendant, as executor and . trustee under the will of John C. Hitchcock, deceased, to recover one-third of that part of the estate given by the will to the plaintiff and her two infant sisters.

The complaint sets out the will in extenso, and alleges, amongst other things, that the defendant has filed and passed his final *558accounts as executor, and that by the surrogate’s decree, made March 17, 1873, the trust estate iu the defendant’s hands, for the benefit of the plaintiff and her sisters, was adjudged to be $14,538.33 on the 1st day of March, 1869, and was invested; and, further, that she is twenty-one years of age ; that she has demanded an account of one-third of the investment; that the defendant has refused to pay the same, and threatens to bring an action for the construction of the will and directions as to his rights and duties. She also alleges that she is informed and believes that the duties of the defendant as trustee are plain and direct, and that no judicial construction of the will is required for his instruction.

The defendant demurred, upon the ground that there was a defect of parties plaintiff or defendant, and insisted that the infant sisters alluded to should have been made parties to the action. This view of the case was adopted by the justice presiding at the Special Term, but no opinion ivas expressed, as appears from the papers. An examination of the authorities leads us to the conclusion (although, perhaps, there may be some conflict in them) that the action may be maintained in its present form, and that the infant sisters are not necessary parties to the action.

The following authorities sustain the proposition: Hughson v. Cookson (3 Young & Collier Ex., 578); Hutchinson v. Townsend (2 Keen, 675); Lenaghan v. Smith (2 Phillips, 301); Hares v. Stringer (15 Beav., 206); Story’s Equity (8th ed., §§ 207, 212)

The judgment should be reversed.

Judgmeut reversed.