#### Gilbert M. Husted, App’lt, *v.*Augustus Cruikshank, Trustee, Resp’t.

*(Supreme Court, General Term, First Department,*

*Filed May 15, 1891.)*

1. Legacy—Action to recover—Pleading.

A complaint in an action to recover a legacy which alleges that in an action to construe the will it was adjudicated that plaintiff was entitled to one-eleventh of the estate, which share was of the value of upwards of $10,000; that defendant has since sold the remaining property and paid out large sums to others, but refuses to pay the plaintiff, does not state facts sufficient to constitute a cause of action at law, as it does not allege an accounting or determination of the amount of plaintiff’s proportional share.

2. Same—Parties.

Such complaint in an action brought solely against the trustee is defective as an equitable action by reason of defect of parties, as no binding determination of the amount of plaintiff’s share could be obtained without the presence of the other parties interested in the estate.

Appeal from judgment sustaining demurrer to the complaint.

*A. E. Woodruff,*for app'lt; *A. Gruikshank,*for resp’t.

Van Brunt, P. J.

The complaint in this action, after averring the death of one Benjamin Lord, leaving a last will and testament, which was duly admitted to probate, and the appointment of the defendant as trustee of the estate, alleges that the defendant, as said trustee, commenced an action in this court for the construction of the will of said Lord; that the plaintiff appeared, and a judgment was entered by which it was finally adjudicated, among other things, that the plaintiff herein had a vested interest in and to a certain one-eleventh share in said estate, “ which said one-eleventh share or interest of this plaintiff was then of the value of upwards of over $10,000 to $15,000.”

The complaint further alleges, that since the rendition of the judgment by which the rights of this plaintiff and others were determined, the said trustee has sold the remaining real property belonging totlm estate, and out of the proceeds and other assets of the estate in his hands, first paid out large sums of money to others interested in and entitled to a share of the estate; but though the plaintiff has duly demanded the payment of said one-eleventh share or interest so belonging to, and by said judgment held to be vested in plaintiff, the defendant has neglected and refused, and still neglects and refuses, to pay the same.

The plaintiff thereupon demands judgment for the sum of $10,000, with interest, or for whatever other sum may be found to be the present value of said one-eleventh share of said estate, inclusive of said interest therein.

*946The defendant demurred to the complaint, upon the ground that the complaint does not state facts sufficient to constitute a cause of action; and that there is a defect of parties, in that the *cestuis que trust*of the estate of defendant’s testator, other than the plaintiff, are not-made parties to the action.

The court below held that, treated as a common-law action, the complaint does not state facts sufficient to constitute a cause of action, and, treated as an equity action, there was a defect of parties, and sustained the demurrer, and from the judgment thereupon entered this appeal is taken.

It is clear that the adjudication of the court below was correct.! There has been no accounting or determination showing the' amount of the proportional share of the estate which the plaintiff is entitled to receive, and until that has been done it is evident that no action at law can be maintained.

It is also apparent from the allegations in the complaint that, treated as an action for equitable relief, there is a defect of parties. It appears from the complaint that the plaintiff is only entitled to' an undivided one-eleventh share of said estate, which has never been apportioned, which has never been set aside and never determined. In the determination by an accounting of the amount of this share, the other parties who are interested in the estate are necessary parties, because no binding determination of the amount of this share can be obtained without their presence. ,

It is undoubtedly true, that to sustain a demurrer on the ground of defect of parties it must appear that the party demur-, ring has an interest in having such other parties made defendant, and that as a general rule the plaintiff may choose for himself what persons he will make defendants; and that before a defendant can sustain a demurrer on account of non-joinder of a defendant he must show that his interest requires that he should be made a party to the litigation. But in the case at bar, these facts appear upon the face of the complaint. It appears that there has been no accounting, that the amount of the share of this plaintiff in the estate has never been definitely ascertained, and that it will be necessary before a judgment can be rendered in his favor that the amount of such share should be ascertained; and before the amount of that share can be ascertained it is necessary that all the other parties interested in the estate should be before the court in order that there may be one accounting, a definite determination of all the interests of all the parties, and a decree entered which will be binding upon all those interested in the subject niatter. ■ .

There seems to be no principle, therefore, upon which a complaint of this kind can be sustained where objection is taken to its form.

The judgment should be affirmed, with costs.

Daniels, J., concurs.