Madeline M. Duck and Others, Appellants, v. Robert H. McGrath and Others, Defendants, Impleaded with Brooklyn Trust Company, as Trustee, Respondent

Madeline M. Duck and Others, Appellants, v. Robert H. McGrath and Others, Defendants, Impleaded with Brooklyn Trust Company, as Trustee, Respondent. Second Department, February 6, 1914. Parties — suit against widow and daughter to recover on liability of testator as surety—trustee under testator’s will proper party. In a suit against a widow 'and her daughter to recover on the liability of the testator on the bond of a guardian, a.trustee of the testator holding property, the income of which is payable to the widow, is a proper party defendant. Appeal by the plaintiffs, Madeline M. Duck and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 5th day of December, 1913, denying plaintiffs’ motion for judgment on the pleadings and sustaining a demurrer interposed by the respondent to the complaint, with leave to plaintiffs to amend and plead over. Edward Hymes [Michael Schaap with him on the brief], for the appellants. Randolph Catlin, for the respondent. [MAJORITY — Burr, J.:] Burr, J.: The sufficiency of the complaint in this action has been considered in Duck v. McGrath (160 App. Div. 482), decided herewith. This action is in equity, and the defendant the Brooklyn Trust Company, which is a trustee under the will of Leffert L. Bergen, deceased, and is in possession of a fund arising from property bequeathed by him to it of the value of more than $200,000, the income of which is now payable to Sarah E. Bergen, his widow, is a proper if not a necessary party thereto, .within, the general rule in equity actions that all persons who are or may be materially interested in the subject-matter of the action are proper parties, to the end that there may be a complete decree binding upon all. (Burns v. Niagara, Lockport & Ontario Power Co., 145 App. Div. 280.) The order denying plaintiffs’ motion for judgment on the demurrer of said defendant must be reversed, with ten dollars costs and disbursements, and the motion for judgment granted, with ten dollars costs, but with leave to defendant to withdraw said demurrer and to answer over within ten days after service of a copy of this order, upon payment of said costs. Thomas, Rich and Putnam, JJ., concurred; Jenks, P. J., not voting. Order denying plaintiffs’ motion for judgment on the demurrer of said defendant reversed, with ten dollars costs and disbursements, and motion for judgment granted, with ten dollars costs, but with leave to defendant to withdraw said demurrer and to answer over within ten days after service of a copy of this order, upon payment of said costs.