Strong v. Strong , 84 Hun 314 ( 1895 )

BROWN, P. J.

The complaint in this action does not state a cause of action for partition of real estate. The plaintiffs derive no title to the land under the will of their father, neither have they any under the agreement with the heirs. The later instrument is, in respect at least to the land, a mere executory contract, to the effect that all who executed it shall share equally therein. It conveys no title, and does not constitute the signers joint tenants or tenants in common in the land of which their father died seised. I know of no precedent for an action in equity which seeks no other relief than a distribution of a testator’s personal estate among those entitled thereto. The law gives the custody and possession of the personal estate to the executors, and jurisdiction to direct and control their conduct and settle their accounts is conferred upon the surrogates’ courts; and a court of equity does not interfere in such cases, except when there is some question of the construction or validity of the provisions of a will, or some question of the enforcement of a trust. When complete relief can he obtained in the surrogate’s court, a court of equity will decline to entertain an action for an accounting" or other relief against executors. Wager v. Wager, 89 N. Y. 161.

'Assuming, for the purposes of this appeal, that the agreement between the heirs, so far as the personal estate was concerned, executed itself, and is to be construed as an assignment to the plaintiffs of an interest in the estate, no facts are stated in the complaint which create an equitable cause of action against the executors for an accounting, and no reason is apparent why the plaintiffs cannot obtain all the relief to which they are entitled in the surrogate’s court. The complaint contains no allegation against the executors of any kind, nor is any judgment demanded against them. The prayer for relief ignores them entirely, and a judgment is sought by which the estate is to be divided by commissioners appointed by the court, or sold, and the proceeds distributed under its direction. While an action can be maintained for a partition of specific personal property, owned in" common by two or more parties, or for the sale of a chattel, and the distribution of the proceeds, a cause of action, such as is set out in the complaint, which would remove from the custody of executors the whole estate of a testator, and distribute it among the beneficiaries, is unknown to the law. The special term, however, decided that the complaint set forth a cause of action for a specific performance of the agreement to divide the estate. With such a cause of action, neither Mrs. McMahan nor the executrices have any concern. They are not parties to the agreement, nor interested in the result of such a suit The demurrers of these defendants are therefore well taken.

But we are of the opinion that the complaint does not state such a cause of action. No relief of that kind is asked, and the test to be applied to the pleading is whether, if there was no answer, the plaintiffs would be entitled to a judgment directing a conveyance to them of their respective shares of the real and personal estate. By section Í207 of the Code of Civil Procedure, it is provided that “when there is no answer the judgment shall not be more favorable to the plaintiff than that demanded in the complaint.” The plaintiffs would not therefore be entitled to a judgment decreeing specific performance of the contract, not having demanded that relief.

But the complaint is defective in another respect. The consideration of the agreement between the heirs was alleged to be an agreement on the part of the plaintiffs and their brothers not to contest the will, and there is no allegation that that agreement was performed. The testator died on November 9, 1893, and the will was not admitted to probate until January 22, 1894. The court could not presume that there was no contest. That there should be no contest was a condition precedent to the daughters’ liability. It was a fact to be alleged and proved, and, without such an allegation, the complaint failed to state a cause of action.

The demurrers were all well taken, and the judgment should be reversed, and the "demurrers sustained, with costs, with leave to the plaintiffs to amend the complaint in 20 days on payment of costs. All concur.