The opinion of the court was delivered by: RAYFIEL
The defendant moves to dismiss the complaint herein on three grounds:
1. That the Court lacks jurisdiction to determine the issues raised by the pleadings.
2. That the complaint fails to state a claim upon which relief can be granted.
3. That the complaint fails to join indispensable parties.
Both the plaintiff and the defendant have submitted affidavits which include matters outside the complaint. Hence, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., I shall treat the motion as one for summary judgment under Rule 56 of said Rules.
A resume of the facts follows: One Edgar M. Hill, Jr., was the owner in fee of certain premises in the Borough of Brooklyn, City of New York, known as No. 204 Livingston Street. He was a resident of the Borough of Manhattan, City of New York. He died on March 18, 1953, leaving a will by the terms of which Genevieve E. Finn, the defendant herein, was named executrix, and the property above referred to was specifically devised to his mother, Minerva M. Hill. The will was duly admitted to probate in the Surrogate's Court, New York County, on April 30, 1953, and the defendant herein was appointed executrix. She duly qualified and is acting as such.
At the death of the testator the property was subject to two mortgages. The first, in the sum of $ 45,000, was in favor of Harding Johnson, as trustee; the second, in the sum of $ 10,000, was in favor of Hilda Heckel. The papers do not disclose the balances unpaid on said mortgages at the time of the testator's death, but paragraph '8' of the complaint alleges that the first mortgage was reduced to the extent of $ 15,250 in the nine months following his death by or in behalf of Minerva M. Hill, the devisee of the property. At the time of his death Mr. Hill was in arrears in the payment of certain New York City real estate taxes on the property. Thereafter, the plaintiff, a resident of Pennsylvania, a brother of Minerva M. Hill and an uncle of the testator, became the owner and holder of the two mortgages through assignment from the original mortgagees. He paid the taxes, and then commenced an action against the said Minerva M. Hill to foreclose the mortgages. After the commencement of the action, and on July 29, 1960, Mrs. Hill executed and delivered a deed to the plaintiff in lieu of foreclosure, which was duly recorded in the Office of the Register of the County of Kings on August 4, 1960, after which the plaintiff entered into possession and control of the property.
Prior thereto, and on or about October 27, 1957, the defendant, as Executrix of the Estate of Edgar M. Hill, Jr., filed an amended and supplemental petition for a voluntary accounting in the Surrogate's Court of New York County, wherein she requested, inter alia, the following relief.
'2. That the Executrix be given permission to take possession of the real property located at 204 Livingston Street to collect the rents and profits thereon.
'3. That the Executrix be given permission to sell the real property located at 204 Livingston Street, Brooklyn, New York, at an upset price to be fixed by this Court for the purpose of paying the funeral, administration expenses and debts and to distribute the balance to the parties entitled thereto.'
The petition was entertained, and a citation was served upon Minerva M. Hill. Objections thereto were filed on behalf of several persons and hearings thereon were held before a Special Referee appointed by the Surrogate. On July 28, 1961 a decree was signed by the Surrogate of New York County allowing certain proposed claims and fixing certain administration costs. Under the decree it was further:
'3. Ordered, adjudged and decreed that the Executrix is authorized to take possession of the premises No. 204 Livingston Street, Brooklyn, New York, to collect the rents and profits and to sell said property at an upset price of $ 45,000 for the purposes set forth in Section 234 of the Surrogate's Court Act.'
After the property was conveyed to the plaintiff by Minerva M. Hill, and in or about August, 1960, the defendant herein, as one of the plaintiffs, both in her capacity as Executrix and personally, with her attorney, Leo Louison, Esq., as creditors, commenced an action in the Supreme Court of the State of New York, Kings County, against he plaintiff herein and Minerva M. Hill, as defendants, to set aside the conveyance on the ground that the estate was insolvent, and that the conveyance was a fraud upon them and the other creditors of the estate. The plaintiff herein appeared in that action and moved unsuccessfully for summary judgment. ...