Lyddy v. Gano

26 F. 177

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: July 1, 1886
• Status: Published

Opinion

Wallace, J.

The complainant, a citizen of this state, has filed a bill as a creditor of one McCunn, deceased, against the heirs at law of the deceased, to compel satisfaction of his debt out of the real estate now in their hands, which descended or was devised to them. Some of the defendants are citizens of this state, but others, those upon whose petition the suit was removed here from the state court, are citizens of other states. The rights and remedies of creditors against heirs and devisees of a deceased person are wholly controlled by statutory law in this state, and the contention of the defendants is that the heirs are severally and not jointly liable to the payment of their proportionate share of the creditor’s demand, out of the real estate in their hands. Although they are respectively liable to the extent of the estate which has descended to them, nevertheless all the heirs are indispensable parties to the suit. If the suit were brought against one only of the heirs, it would be an unanswerable objection to the relief sought, that all were not made parties. Dodge v. Stevens, 94 N. Y. 216; Wainburgh v. Gates, 11 Paige, 513; Parson v. Brown, 7 Paige, 354. The suit, therefore, does not present a separable controversy which can be determined, as between the removing defendants and the complainant, without the presence of the other defendants, who are citizens of this state.

The motion to remand is granted.