Judge of Probate v. Jackson , 58 N.H. 458 ( 1878 )

The question whether this process should have been sued out by the trustee or the beneficiary does not reach the equity of the case. It is immaterial whether the income which Mrs. Dorr should have received from the former trustee is paid to her by the defendants directly, or by them through the hands of the present trustee.

She is, in fact, the most interested person; and if she is not the "person interested," within the meaning of Gen. St., c. 187, s. 12, the formal defect in the procedure may be remedied by an amendment substituting the name of the trustee for hers. The defendants' objection may be regarded as a motion for an order that the defect be amended (Berry v. Osborn,28 N.H. 279, 287); and such a motion should be disposed of at the trial term.

A motion by the present trustee to bring forward the original action for a rehearing in chancery on the forfeiture, and to make such amendments as might be necessary for the presentation of the entire claim, would be a proper course to correct the shortcomings of that action. Notice to the defendants would be necessary. The service of the scire facias is a notice. And the scire facias being a process requiring the defendants to show cause why Mrs. Dorr should not have execution against them for another part of the judgment that was rendered for her benefit, they may be considered as properly brought into court to show cause against such a motion for rehearing and amendment. The original hearing in chancery and the hearing on this scire facias go upon the same equitable grounds, and for the accomplishment of the same purpose. If by amendment, and presentation of the entire claim at the former hearing, the second trustee should have prevented further litigation, there may be a question of costs to be considered at the trial term.

The failure of the former trustee to pay Mrs. Dorr the income he received from the trust fund caused the expense of his removal and the suit on his bond. The damage resulting from his breach of trust is greater than the benefit derived from his services, and he is entitled to no compensation.

Case discharged.

STANLEY, J., did not sit.