FRANCIS E. WALBRIDGE, Respondent,
BROOKLYN TRUST COMPANY, as Executor, etc., of ANNA H. WALBRIDGE, Deceased, Appellant, Impleaded with GEORGE O. WALBRIDGE and Others, Individually and as Executors of and Trustees under the Last Will and Testament of OLIN G. WALBRIDGE, Deceased, and Others, Defendants.
APPEAL by the defendant, the Brooklyn Trust Company, as executor, etc., from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 16th day of November, 1910, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the said defendant's demurrer to the complaint.
William N. Dykman [Francis L. Archer with him on the brief], for the appellant.
Robert H. Wilson, for the respondent.
JENKS, P. J.:
The plaintiff, a beneficiary under the will of Olin G. Walbridge, deceased, seeks judgment that directs the executors forthwith to
sell and to dispose of the real estate and to distribute the proceeds, pursuant to a testamentary power of sale conferred upon them and to the directions of that instrument. The Brooklyn Trust Company, as executor of Anna H. Walbridge, a party defendant, appeals from an interlocutory judgment that overrules its demurrer that the complaint does not state sufficient facts to constitute a cause of action. The learned counsel for the respondent in his arguments, oral and written, concedes that a cause of action is not pleaded as against this defendant, and that no relief is asked against it, but he contends that it cannot demur inasmuch as it was made a defendant merely out of precaution, in that it is or may be directly or indirectly interested in the estate.
The sole mention of this defendant is in the caption of the complaint. Anna H. Walbridge is not mentioned in the complaint save that the will is annexed thereto and she is named therein. There is no allegation that she survived the testator or that she is dead. As there is no mention of the demurrant in the complaint, consequently there is no allegation that it was appointed the executor of Anna H. Walbridge or qualified as such, or that it has any interest or asserts any interest whatever in the real estate in question. I think that the complaint is demurrable as to this defendant. ( Paxton v. Patterson, 26 Abb. N. C. 389; Makepeace v. Davis, 27 Ind. 352; Bliss Code Pl. § 414.) But let us admit the contention of the respondent, 'If the widow were not dead and if the Trust Company had not been appointed her executor, it would not have been made a defendant under such title,' and that 'the inferences from the complaint are certainly sufficient upon a demurrer.' Such admission would but mean that the plaintiff sufficiently charged that Anna H. Walbridge was dead and that this demurrant was the executor under her will. Does it then follow that this demurrant is or may be directly or indirectly interested in the subject-matter of the action and so is a proper party? The testator first makes provision for Anna H. Waldbridge, his wife, by devise of the family residence, by bequests of its furniture and equipment, and of one-third of all of his personal estate. This provision is declared to be in full satisfaction and recompense of and for her dower and thirds. Various bequests to divers persons follow, and then as to the 'rest, residue and
remainder' of the estate there is a provision for conversion and distribution that is invoked by this action. The proceeds thereof are given and bequeathed specifically to the children of the testator, of whom the plaintiff is one. The learned Special Term was of opinion that, as the widow's estate might now derive an income from the real estate, her executor might properly be heard. This conclusion is drawn from construction of the 11th clause of the will, of which the part germane reads as follows: 'And in the meantime and until such real estate be sold, converted or divided, I authorize and empower my said executors and trustees or the survivors or survivor of them to lease the same for such time and upon such terms as they may think advisable. Until an actual division, conversion and distribution of my estate as named, I hereby authorize and empower executors and trustees aforesaid and the survivors or survivor of them to manage and control the same, and I hereby authorize them to retain as an investment the securities which may come to their possession as part of my estate, and to sell the same if they deem it advisable and re-invest the proceeds and generally to invest my personal estate and the proceeds of sale of real estate, and to receive the interest and income therefrom, and also to receive and collect the rents from my real estate and from said rents to pay the taxes, assessments, insurance and repairs and until the actual division, conversion and distribution of my estate to pay quarterly after my death the net proceeds of all my estate to my wife, my children, the widow and children of my deceased son, and the trustees, in proportion to their several interests hereunder.' The learned Special Term, however, quoted as the premises for its conclusion only that part of this excerpt which begins 'to receive and collect the rents from my real estate.' Its conclusion presents the peculiar feature that one who is provided for out of the personalty alone (exclusive of the residence) and for whom such provision is declared exclusive, and who consequently had no interest whatever in the realty which was to be converted for the benefit of the children exclusively, was nevertheless to receive a part of the rents thereof until the sale. There is no apparent temporary reason for this, inasmuch as by the 3d clause of the will adequate provision is made by way of advancement for the widow's support and maintenance out of her one-third of the personalty until it is
appraised and divided. The entire provision refers to the actual division, conversion and distribution of 'my estate; ' it authorizes the executors to manage and control it, to retain securities, to sell them, to reinvest the proceeds and to invest the personal estate, thus specifically referring to that kind of property, and then follows directions as to the real estate. The final clause again refers to 'my estate' without distinction, and the quarterly payments are to be made of the net proceeds of 'all my estate * * * in proportion to their several interests hereunder.' There is no other provision as to the proceeds of the personalty, until the actual division, conversion or distribution; the provision made does not refer to the real estate, but to 'all my estate,' and the payments are regulated by the interest of the beneficiaries. But, as we have seen, the widow has no interest in the real estate. What proportionate part, then, could be paid to her out of its income? I think that the right construction of this clause, so far as the widow is concerned, is that until actual division, conversion and distribution she was to receive the net proceeds, not from the real estate, but according to her interest which was in the personal estate exclusively save as to the residence. This provision is entirely distinct from the advancements referred to in the 3d clause of the will. There was an actual 'division, conversion and distribution' as to her when she received the one-third of the personal property pursuant to that clause. It will not be assumed that this was not done. There is no suggestion that the will has not been carried out (save as to the powers of sale), or that the widow has not accepted the provision made for her thereunder. For these reasons, even if we give effect to every inference insisted upon by the respondent so as to read into the complaint an allegation that Anna Walbridge is dead and the defendant the Brooklyn Trust Company is her executor, and thereupon we read ...