¶1— The ground of demurrer assigned by the executors and executrix is, that the complaint does not state facts sufficient to constitute a cause of action against them as such.
¶2The terms of the will of Isaac U. Coles, deceased, and the powers and duties of the executors and executrix, thereunder have already had some consideration by this court (Clark agt. Coles, 48 How. Pr., 266).
¶3Westbrook, J., there held, in substance, that there was no trust in the defendants, as executors, and executrix, under the will. And, further, that the executors and executrix, while authorized by the will to lease, sell and dispose of all or any part of the real estate of the testator, are not required to do so. The powers enumerated might be exercised by them, by the terms of the will, at their discretion. That the devise of the income of the estate is directly to the widow, without the intervention of a trustee.
¶4As the decision by the learned judge was upon questions *181directly before him, I do not propose to re-examine the same, and shall accept his conclusions.
¶5It is not averred, in the complaint, that the executors and executrix, as such, have exercised the power to lease, or other of the powers vested in their discretion.
¶6There is no allegation in the complaint .that the widow has remarried.
¶7And, under the will, she is entitled to collect and receive, as devisee and legatee, all such income. And, in the absence of express allegations to the contrary, she is presumed to have done so.' In fact, it is alleged that the defendant, Martha Ellery Coles has been allowed to receive, and appropriate to her own use, the whole of the gross income of the estate.
¶8In "this view, the remedy of the plaintiff is against her, individually.
¶9It is, therefore, held that no cause of action is made out by the complaint against the defendant’s executors and executrix.
¶10The defendant, Martha Ellery, individually demurs, and assigns as grounds therefor: that two causes of action have been improperly united, to wit, a cause of action against her as executrix, and another against her individually.
¶11Although it has been held above that no cause of action is, in fact, made out against the executors and executrix, yet the whole complaint, including its prayer for judgment, shows that it is based upon the theory that the plaintiff’s relief against the taxes is to be obtained through and against them. Such judgment against them must needs operate upon the estate of the testator, the income of which, it is sought through them, to have applied to the payment of these taxes.
¶12And, for the purposes of the separate demurrer, the facts, to justify such relief, must be considered to be well pleaded.
¶13Yet any relief or judgment against Martha Ellery Coles, individually, would affect her, not as executrix, but the income received by her, as devisee and legatee, under the will. To reach such income received by her, or to enforce a liability *182against her, as devisee or legatee thereof) affects her not as executrix, but individually.
¶14The rule recognized by Savage, Ch. J., in Reynolds agt. Reynolds (3 Wend., 244), is fatal to the goodness of the complaint in this regard. He says, if: the counts be such as to require different judgments they cannot be joined (Landon agt. Levy, 1 Abb. Pr. [O. S.], 376).
¶15There should be judgment for the defendant on the demurrers.