Opinion
March, 1905.
Nathaniel B. Spalding, for the appellants.
Newton B. Van Derzee and John T. Cook, for the respondent.
Upon a trial of an issue of law by the court or a referee a decision or report must be filed. (Code Civ. Proc. §§ 1010, 1019.) The decision of the court or the report of a referee upon the trial of a demurrer must direct the final or interlocutory judgment to be entered thereupon, but it is not necessary to make any findings of fact. (Code Civ. Proc. § 1021.)
If the decision is entered in the form of an order ( Wright v. Chapin, 74 Hun, 521; Garrett v. Wood, 57 App. Div. 242; 9 N Y Ann. Cas. 292) an appeal cannot be taken therefrom. ( Evans v. Ogsbury, 2 App. Div. 557; Unckles v. Hentz, 19 id. 165; Kley v. Higgins, 59 id. 581.)
The will does not in terms recognize any distinction between the offices of executor and trustee. It only speaks of real property, and that is all given to the executors in trust. Under the will the trusts are vested in Benjamin Rowe and Frederick Rowe in their capacity as executors and are attached to the office. ( Earle v. Earle, 93 N.Y. 104.) By accepting and qualifying as executors they accepted the trusts conferred upon them by the will. ( Earle v. Earle, supra.) It would perhaps be wise and good practice in a case like this to add to the statement of the representative character of the defendants the words "as trustees" in addition to the words "as executors," but the failure to do so is not a sufficient reason for sustaining a demurrer to the complaint where, as in this case, the complaint contains a copy of the will, and further allegations showing that as executors the defendants have accepted the trusts created by the will. ( Knox v. Metropolitan El. Ry. Co., 58 Hun, 517; Ducker v. Rapp, 67 N.Y. 464; Berolzheimer v. Strauss, 7 Civ. Proc. Rep. 225; Bird v. Lanphear, 11 App. Div. 613.)
A demurrer runs to the allegations of the complaint and not to the summons, or to the caption of the complaint. ( Soldiers' Home v. Sage, 11 Misc. Rep. 159.)
The appeal from the order should be dismissed and the interlocutory judgment should be affirmed, with costs, with leave to appellants to withdraw the demurrer and serve an answer on payment of the costs in this court and in the court below.
All concurred.
Appeal from order dismissed and interlocutory judgment affirmed, with costs, with leave to appellant to withdraw demurrer and serve answer on payment of costs in this court and in court below.