Studios v. Shepherd

164 A.D. 883, 148 N.Y.S. 901

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 15, 1914
• Status: Published

Opinion

Ingraham, P. J.:

The plaintiff is a creditor of Ethel Dana Shepherd and received from her an assignment of a certain interest in an amount received by the defendants as executors and trustees under the last will and testament of William B. Dana, deceased, which are the proceeds of certain real premises Nos. 142 to 150 Worth street, in the city óf New York, which property was condemned by the city of New York and the amount awarded therefor paid to the defendants as executors and trustees. By the will of the testator this with other real property was left to his executors in trust to collect the rents, income and profits thereof and to pay the same during the lifetime of Wilham Shepherd Dana, testator’s adopted son, and divide such rents, income and profits equally between the said Ethel Dana Shepherd and the said Wilham Shepherd Dana. The executors were authorized to sell any portion of the said real estate at such price and upon such terms as they might deem advisable. In the event of any such sale the executors were directed to terminate the said trust to the extent of the property so sold, and to pay one-half of the net profits of such sale to Ethel Dana Shepherd and one-half to William Shepherd Dana or the survivor of them. Subsequently this property was condemned by the city of New York, and the amount awarded as the value of the property was paid to the executors, and the plaintiff claims that such condemnation and the payment of the proceeds was a sale within this provision of the codicil to the testator’s will. It also appears by the submission that Ethel Dana Shepherd, the assignor of her interest in this fund to the plaintiff, is largely indebted to other creditors; that she has also assigned to other creditors a portion of her interest in this sum of money in the hands of the defendants; that none of these creditors are parties to the proceeding; and neither Ethel Dana Shepherd nor William Shepherd Dana, the beneficiaries under the will, is a party. This submission does not seem to have been executed by Ethel Dana Shepherd either individually or as executor and trustee. It is quite apparent that the parties necessary to a construction of this will are not before the court. The other creditors who have acquired an interest in this fund, if Ethel Dana Shepherd is entitled to it, are necessary parties, and Ethel Dana Shepherd and Wilham Shepherd Dana, beneficiaries under the trust, are also necessary parties. Any judgment entered on this submission would not be binding on any of them and would not protect the trustees in paying the plaintiff any portion of the fund in their hands. The question presented involves the construction of the will of the testator, and to an action for that purpose all parties having an interest in the fund must be made parties. The proceedings are, therefore, dismissed, without costs. McLaughlin, Scott, Dowling and Hotchkiss, JJ., concurred. Proceedings dismissed, without costs. Order to be settled on notice.