Bruner v. Torrey

Appellate Division of the Supreme Court of New York

Bruner v. Torrey

141 A.D. 838, 125 N.Y.S. 915, 1910 N.Y. App. Div. LEXIS 3968

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 2, 1910

StatusPublished

Cited by1 cases

This text of 141 A.D. 838 (Bruner v. Torrey) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bruner v. Torrey, 141 A.D. 838, 125 N.Y.S. 915, 1910 N.Y. App. Div. LEXIS 3968 (N.Y. Ct. App. 1910).

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Opinion

Thomas, J.:

The action is to test the validity of a will .and its.probate. Two ■ defendants conceived nine grounds of demurrer to the complaint,, seven of which are bad. The reference to the earlier unprobated will is to account for the presence of certain persons who are alleged to claim interest thereunder, perchance, and went quite far:enough for-that purpose. The will is not probated, and Warner is .not -its executor, nor has an administrator of Layton Ellis Day 'been appointed. This, disposes of the second, -fifth, sixth and seventh grounds of the demurrer. Torrey as executor, not individually, is made a party. He is a legatee, and should as such be bound by the decree, and the record should be in such technical form as to show it; but there is no occasion to make him a party as trustee.' The [839]*839will imposes upon him duties as executor, and by virtue of such office he will receive the property and' make disposition of it. If Torrey is a trustee, it by legal implication follows from his executor-ship. There is no occasion to describe him as such in the complaint. (Knox v. Metropolitan El. R. Co., 58 Hun, 517, 519; affd., 128 N. Y. 625.) This disposes of the fourth, eighth and ninth grounds of demurrer. • The complaint does not show that “ All the devisees,.legatees and heirs of the testator and other interested persons ” have been made parties. It is quite another thing to state that certain persons made parties “ are the only persons entitled to any part of the estate,” or that they “ are all the persons interested in the estate.” There might be different conclusions in that regard. It is convenient to observe the requirements of the statute,

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Thomas, J.:

The action is to test the validity of a will .and its.probate. Two ■ defendants conceived nine grounds of demurrer to the complaint,, seven of which are bad. The reference to the earlier unprobated will is to account for the presence of certain persons who are alleged to claim interest thereunder, perchance, and went quite far:enough for-that purpose. The will is not probated, and Warner is .not -its executor, nor has an administrator of Layton Ellis Day 'been appointed. This, disposes of the second, -fifth, sixth and seventh grounds of the demurrer. Torrey as executor, not individually, is made a party. He is a legatee, and should as such be bound by the decree, and the record should be in such technical form as to show it; but there is no occasion to make him a party as trustee.' The [839]*839will imposes upon him duties as executor, and by virtue of such office he will receive the property and' make disposition of it. If Torrey is a trustee, it by legal implication follows from his executor-ship. There is no occasion to describe him as such in the complaint. (Knox v. Metropolitan El. R. Co., 58 Hun, 517, 519; affd., 128 N. Y. 625.) This disposes of the fourth, eighth and ninth grounds of demurrer. • The complaint does not show that “ All the devisees,.legatees and heirs of the testator and other interested persons ” have been made parties. It is quite another thing to state that certain persons made parties “ are the only persons entitled to any part of the estate,” or that they “ are all the persons interested in the estate.” There might be different conclusions in that regard. It is convenient to observe the requirements of the statute,

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Bluebook (online)

141 A.D. 838, 125 N.Y.S. 915, 1910 N.Y. App. Div. LEXIS 3968, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bruner-v-torrey-nyappdiv-1910.

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