Sutherland v. Ronald

18 N.Y. Sup. Ct. 238

Opinion

Smith, J.:

¥e have not had the benefit of an argument by counsel in this case. Our impressions, however, are very decided, that no judgment can be rendered, other than for the defendant, without prejudice to an action by the plaintiff for the legacy, under the statute, on fifing a bond as therein required. (2 R. S., 114; §§ 9, 10, 11.) A legatee cannot maintain an action for the sole purpose of obtaining a construction of a will. He may sue for the legacy, and the suit may involve construction, but if he sues at law, it must be in the mode prescribed by statute. At common law, a suit for a legacy did not fie. (Deeks v. Strutt, 5 T. R., 690; Pelletreau v. Eden, 18 Johns. R., 428.) He may, in a proper case, resort to a court of equity, or the executor may bring an action to obtain a construction of the will, but if either of the last two remedies be pursued, all persons having an interest, as, in this case, the residuary legatees, must be made parties. (See Hobart College v. Fitzhugh, 21 N. Y., 130; op. Marvin, J., pp. 133, 134.)

Proceeding dismissed without judgment, and without costs to either party.

Present — Mullin, P. J., Talcott and Smith, JJ.

Proceedings dismissed without judgment, and without costs to either party.