Leavy v. Leavy

The demurrer was not frivolous. It was, to say the least, a fair question for deliberate consideration whether the other residuary legatees should not have been made parties. In Cromer v. Pinckney (3 Barb. Ch., 474), the chancellor said that, “ As a general rule, a legatee may sue the executor for his. own particular legacy, without making the residuary legatees, or any other legatees, parties to the suit. The case is otherwise where one of the residuary legatees sues for his snare of the residue. For, as an account of the estate must be taken in that case, the executor may insist that the other residuary legatees shall be brought before the court, to save him the trouble of accounting, a second time, at their suit.” It is contended that this rule is inapplicable to the present case, because of the averment that the executor has in his hands a definite sum applicable to the payment of the plaintiff’s share. But this averment is preceded by a statement as to the general assets which came into the defendant’s hands, and is followed by an allegation that, on an accounting being taken of such assets, and of the exr penses of administration, there will be found this definite sum and upwards, as assets in the hands of the defendant, applicable to the payment of the plaintiff’s said share. Further on, there is a reference to the existence of assets'applicable to the payment, or *502part payment, of plaintiff’s share. Upon this, the plaintiff demands judgment — first, for the definite sum, and second, for an accounting and payment of whatever he may be found entitled to thereon, be^ond the definite sum. It is difficult to separate the averments of this complaint, to take the statement with regard to the definite sum out of their immediate connection, place them by themselves, and apply thereto naught save the first demand of judgment. There is no separation or statement of distinct causes of action in the pleadings, and it would seem to be a fairer and more rational construction of the complaint to treat it as an action for an accounting, with special averments as to the extent of the assets. Should this view ultimately prevail,* upon the argument of the demurrer as an issue of law, the plaintiff will probably be compelled to bring in the other residuary legatees. Enough, at all events, has been said to demonstrate the error in adjudging the demurrer to be frivolous. The order and judgment should, therefore, be reversed. It follows that the appeal from the order denying the plaintiff’s motion to punish the defendant for contempt in not paying the judgment, should be dismissed.

Order adjudging demurrer frivolous and judgment entered thereon reversed, with costs.

Appeal from order denying motion to punish defendant for contempt dismissed, without costs.