Page:Federal Reporter, 1st Series, Volume 1.djvu/135

 EQUITABLE LIFE ASSUEANCE SOCIETY V. PATTBKBON. 127 �Same— Demurker OiiE Tekus— Oath of Infants to Answer.— A de- murrer ore tenus mwst be co-extensive with the bill, and will not prevail where the demurrer is taken upon the ground that the bill prays for an answer under oath by infant defendants. �Nelson, J. The infant defendants, Kate Kirby Patterson and Edwin Croswell Patterson, by their guardian ad litem, demur to the plaintifs bill, and assign as causes of demurrer: First, that they have no interest in the matters complained of in the bill ; and, second, multifariousness. The plaintifï is a New York corporation, and the policy of insurance was issued and is payable there. The insurance money, by the terms of the policy, is payable to the children at the decease of Charles G. Patterson, the father, if Fannie E. Patterson, the mother, is not then living. This olearly gives the children a contin- gent interest in the policy, and they are, th'erefore, proper and necessary parties to a bill in equity to set aside the policy for any cause. Eadiev. Slimmon,2Gl^.Y.9 ; Barryy. Equit. L. Ass. Soc. 59 N. Y. 587; Knickerbocker Ins. Co. v. Weitz, 99 Mass. 157. �The joining in the bill a prayer for an injunction to restrain Charles G. Patterson, one of the defendants, from f urther pros- ecuting a suit at law in this court, to recover back the premi- ums already paid, is not such a distinct and independent mat- ter as to render the bill multifarious. �The guardian ad litem assigns another cause of demurrer ore tenus, that the bill prays for an answer, under oath, by the infant defendants. There are two reasons why this demurrer cannot prevail. The first is that a demurrer ore tenus must be co-extensive with the demurrer upon the record. 1 Dan. Ch. Prac. 589; Story's Eq. Plead. § 464. The demurrer on the record here is to the whole bill, while the demurrer ore tenus is to the prayer only. The second reason is that an infant's answer is by his guardian, and should be upon the oath of the guardian, though he is required to ewear only to his belief in the truth of the infant's defence. 1 Dan. Ch. Prac. 753; Story's Eq. Plead. § 871. �The entry must be : Demurrer overruled. ��� �