Baxter v. Proctor , 139 Mass. 151 ( 1885 )

Field, J.

The defendant contends that this is a suit of a civil nature in equity where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and is a controversy between citizens of different States, and is therefore removable under the U. S. St. of March 3, 1875, § 2.

Under this statute it has been held that, in order to remove the whole case, all of the parties on one side of the controversy, whatever may be their formal position in the suit, must join in' the petition for removal, and that the petition cannot be granted if any one of these parties is a citizen of the same State as any one of the parties on the other side; but if the case can be separated into distinct controversies, that then the parties actually interested in any one controversy, if citizens of different States, are entitled to have that part of the case removed. Blake v. McKim, 103 U. S. 336. Mutual Ins. Co. v. Allen, 134 Mass. 389.

In the case at bar, the principal controversy is whether the defendant shall be removed from the trust; if he is removed, there is a prayer that another person may be appointed trustee in his place. All the beneficiaries under the trust are in fact interested in this controversy; whether the defendant shall be removed or not, equally concerns them all. There is no controversy in the case in which the plaintiff has an interest separate and distinct from that of the other beneficiaries. To the bill as it stands, the only actual parties are the plaintiff and the defendant, and they are citizens of different States. It is, however, an important question of practice, whether, if there are other persons who are necessary parties to the suit, without whom or notice to whom a decree could not properly be made, the court of its own motion will not insist either that the necessary parties be brought before it, or that the bill be dismissed. If this is regarded as an application under the general equity powers of the court, the court might, on proper allegations, if it decided to remove the defendant as trustee, not only order him to convey his legal interest in the trust property to the other trustees, but also order him to account. See McPhersons v. Cox, 96 U. S. 404. In this the other beneficiaries are interested equally with the plaintiff. It appears by the bill and the deed of trust that many persons other than the plaintiff were cestuis que trust, and there is no allegation that they have deceased, or that their interest in the trust has ceased, and it abundantly appears that the beneficial interest of the plaintiff is in but a part of the trust fund. Under these circumstances, we think that the living beneficiaries, if within the reach of process, should be made parties to the bill, and that, if they, are not within the reach of process, notice should be given them.

It cannot be determined whether this is a controversy wholly between citizens of different States until all necessary parties have been brought before the court, or have had notice, that they may appear in the case if they desire to appear. They ought also to have an opportunity to be heard upon the principal question which has been argued, which is whether this is a suit in equity “ where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars,” within the meaning of the statute of the United States which has been cited.

The reservation should therefore be discharged, and the cause stand in the court sitting for the county, that the plaintiff may make application for leave to bring in additional parties, if she shall be so advised. When the time has expired for bringing in new parties, or if no application is made for that purpose, the defendant can then press his petition for removal, or take any other action open to him. See Gordon v. Green, 113 Mass. 259; Danvers Savings Bank v. Thompson, 133 Mass. 182. So ordered.