Plum v. Smith , 11 Dickinson 468 ( 1898 )

The Chancellor.

The motion to strike out the clause of the answer which reserves exceptions must prevail. The two hundred and eighth rule forbids the incorporation of that clause in an answer.

The questions which the cross-bill seeks to present are, first, whether in case enough shall not be realized to pay the whole $2,000 with the interest in arrears, the full interest should not, under a proper construction of the will of Joseph Plum, be paid to the administrator of the widow out of whatever may be realized for both principal and interest, and second, whether the distributive share of Joseph S. Plum, in the fund to be divided among the children of his father, should not be subjected to the payment of the judgment that Hannah Plum recovered against him.

According to the allegations of the cross-bill, the complainant is really a trustee seeking the recovery of the trust fund which he has invested. With the recovery and immediate distribution the trust will terminate. The trustee is irresponsible. He is the owner of the property which is held as security for the fund. I think that his cestuis que trustent are necessary parties to his suit, and that the court should not suffer him to proceed to sale and have the possession of the money realized, before the cestuis que trustent shall be, as parties, heard. And, under the circumstances, I also think that a cross-bill which seeks a direct distribution of the whole trust fund by the court, when it shall be recovered, will justly and with eminent appropriateness lie.

The difficulty at present is that upon the face of the original bill the special trust character of the $2,000 investment does not distinctly appear. The terms of the will under which the executor acts are not stated, and, although the allegation that the mortgage was to continue till the death or marriage of Hannah Plum, indicated that the investment was to answer a particular purpose, yet, from the will, that purpose and the cestuis que trustent concerned in it are not ascertainable.

A plea would properly have shown a lack of parties.

The making of the objection of lack of parties and its determination should have preceded the cross-bill, in order that all parties necessary to the final decision of the question raised by the cross-bill should be before the court.

I do not mean to say that the answer might not have been so framed as to cause the court to arrest the suit until the necessary parties should be brought in, so that they could be served with the answer by way of cross-bill, but that course is objectionable because it creates a delay and the confusion and annoyance of a double hearing, for proofs will be taken before the arrest of the cause will come, and new parties will have the right to review the proofs taken.

I think that the objection is well taken that the cross-bill is multifarious in that while it seeks a construction of the will and distribution of the trust fund (a matter common to all the parties at present in the suits, and the remaining children of Joseph Plum or the holders of their interest), it at the same time seeks to apply the share in the $2,000 to which Joseph S. Plum, as a cestui que trust, may be entitled, to the payment of a judgment against him held by a single defendant. Such joining of claims presents issues which are independent of each other, and which concern different parties, and in which all the parties necessary to the suit are not concerned, and issues which those parties should not all be obliged to follow or be burdened with. Story Eq. Pl. 270.

Besides, the judgment matter does not appear to be the proper subject of cross-bill. It is an independent effort to subject a debtor’s property to the payment of a judgment at law. It has no connection with or relation to the matter of the original suit. Its object can and should be accomplished by an independent bill, and through the instrumentality of injunction and receiver.

I will make this disposition of the motions: I will deny the motion to dismiss the cross-bill, but will strike out that part of the cross-bill which seeks relief with reference to the judgment. The complainant may amend his bill by reference to.the second paragraph of the will of Joseph Plum, and the investment of the $2,000 in pursuance of the direction of that paragraph, and by making the other children of his father, or the holders of their interests, parties defendant to the bill. And he may by due process bring them into court. When the original bill shall be thus amended and the new parties shall be brought into court, I will permit the cross-bill to be amended so as to include those new parties, in order that it may be served upon them, and they may answer it. If the original bill shall not be amended as above suggested, I will give the defendant Smith leave to withdraw his answer and cross-bill and file a plea, so as to present lack of parties.

Costs will be allowed to the complainant upon the motion to strike out the clause of the answer which reserves exceptions, but they will not be allowed to either party on the motion to dismiss the cross-bill.

I have felt constrained to go somewhat beyond the motions in dealing with this case, in order to expedite its proper presentation on the merits, because it concerns a trust in which the trustee occupies an anomalous position, which awakens the court’s serious and jealous attention.