#### John B. Judson and George Chant, as Administrators, etc., of Adam Frederick, Deceased, Appellants, *v.*Jacob W. Staley and Others, Respondents.

Third Department,

July 1, 1914.

Will — action under section 2653a of the Code of Civil Procedure to determine validity of probate—sufficiency of complaint — parties — objection that complaint does not state facts sufficient to constitute cause of action does not raise question of non-joinder of parties — answer of non-joinder should state names of parties omitted.

The complaint in an action under section 2653a of the Code of Civil Procedure to determine the validity of the probate of a will alleged among other things that the intestate left her surviving one P. and the defendants, “her next of kin and only hens at law,” and that after her death *63the said F. died intestate, and the plaintiffs are the administrators of his estate. The executor of the testatrix and another defendant answered, and, among other things, admitted that the decedent left her surviving the heirs at law and next of kin set forth in the complaint, but on information and belief denied that they are all the heirs at law and next of kin her surviving.

*Held,*that the complaint stated a cause of action;

That although the complaint should have stated whether F. left heirs other than the defendants in the action, the omission cannot be taken advantage of under an objection that the complaint does not state facts sufficient to constitute a cause of action.

Ordinarily an answer of non-joinder of parties should state the names of the parties alleged to have been omitted, and, it seems, that a mere denial on information and belief is insufficient.

Appeal by the plaintiffs, John B. Judson and another, as administrators, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Fulton on the 29th day of January, 1914, upon the dismissal of the complaint by direction of the court at the opening of the trial, and also from the order entered in said clerk’s office on the same day directing such dismissal.

*M. D. Murray*and *Dudley & Dennison [Harwood Dudley*of counsel], for the appellants.

*Horton D. Wright,*for the respondents.

Kellogg, J.:

The action was brought under section 2653a of the Code of Civil Procedure to determine the validity of the probate of the will of Catherine Ann Staley. The complaint alleges, among other things, that the alleged intestate left her surviving Adam Frederick and the defendants “ her next of kin and only heirs at law,” and that after her death the said Adam Frederick died intestate and the plaintiffs are the administrators of his estate. The executor of Catherine Ann Staley answered the complaint, and, among other things, admitted that the decedent left her surviving the heirs at law and next of kin set forth in the complaint, but, on information and belief, *“*denies that they are all the heirs and next of kin that the said Catherine Stalee *(sic)*had.” The defendant Jacob W. Staley answered that she left the heirs at law and next of kin set forth *64in the complaint, but that he has no knowledge or information sufficient to form a belief as to whether or not those set forth constitute all the heirs at law and next of kin her surviving.

Upon the trial the executor of • Catherine Ann Staley moved to dismiss the complaint on the ground that it does not state facts sufficient to constitute a cause of action in not showing that the plaintiffs have any interest, or are parties interested in the action, and in not alleging that all the devisees, legatees and heirs of the testatrix, and other interested persons, are parties to the action. The court ruled that the complaint must be dismissed unless it was amended, and was willing to entertain a motion to amend the complaint. The executor required the payment of terms as a condition of the amendment and the court would not intimate whether it would impose terms or not, and thereupon the plaintiff elected not to ask for an amendment and the complaint was dismissed.

The section of the Code referred to requires that all persons interested be made parties to the action. The complaint has been dismissed, not because all the parties interested are not parties, but because the complaint does not allege that all the devisees, legatees, heirs at law and others interested are parties. The copy of the will attached to the complaint shows that all the legatees and devisees are parties to the action. The allegation that the decedent left her surviving the parties named, *“*her next of kin and only heirs at law,” is a sufficient compliance with the section if we consider that it requires an affirmative statement that all the heirs and next of kin are parties. But the section does not declare what the complaint shall contain in that respect. It requires that all such persons shall be parties to the litigation, leaving it to the provisions of the Code to supply any omissions or correct any errors which may appear in the complaint in that respect.

If the complaint contains all the necessary allegations, but omits to name certain parties who are interested and omits an allegation that all persons interested are parties, it cannot be said that on account of the omission it fails to state facts sufficient to constitute a cause of action. The facts constituting the cause of action are the property, the plaintiffs’ interest therein, the execution and probate of the will, the condition of *65the testatrix at the time of execution and whether in fact the paper probated is actually her will. The other questions are questions of practice and are to be regulated and determined according to the provisions of the Code relating to such practice. Section 488 of the Code of Civil Procedure, at subdivision 6, permits a demurrer for defect of parties and, at subdivision 8, upon the ground that the facts stated do not constitute a cause of action, thus recognizing that the two objections are separate and distinct. If the complaint affirmatively shows that certain persons are interested, and they are not parties, the remedy is a demurrer under subdivision 6 of section 488 of the Code of Civil Procedure. If the defect does not appear upon the complaint the defendant may raise it by answer under section 498 of the Code. If he fails to raise it in either of these manners, then under section 499 of the Code the objection is waived. *(Wallace*v. *Bouvier,*141 App. Div. 525.) The complaint does not show, as it should, whether Adam Frederick left heirs other than the defendants in the action. That fact should have appeared, for if he left heirs they should have been made parties. But this omission cannot be taken advantage of under the objection that the complaint does not state facts sufficient to constitute a cause of action. It cannot be claimed that this objection is to the jurisdiction of the court, and we have already seen that it does not raise the question that the complaint does not state facts sufficient to constitute a cause of action. It may be questioned whether a denial on information and belief that the parties named are heirs at law and next of kin is a proper answer of non-joinder of parties. Ordinarily the answer should state the names of the parties alleged to be omitted. That question is, however, not material, as under section 452 of the Code, although the question of non-joinder is not raised by demurrer or answer, the court would direct any persons whose presence is necessary for a complete determination to be brought into the action.

The complaint shows that in the absence of a will Adam Frederick would have been entitled to a share of the real and personal property of the alleged testatrix. He having survived her, his interest in her real estate, if any, would go to his heirs, *66and in her personal estate to his personal representatives. The plaintiffs, therefore, are interested and may maintain the action.

The order and judgment should, therefore, he reversed and a new trial granted, with costs to appellants:

All concurred.

Order and judgment reversed and new trial granted, with costs to appellants to abide event.