Picot v. Bates

Holmes, Judge,

delivered the opinion of the court.

This was a petition in equity by the administrator of one of several distributees of the estate of their mother, not making the others parties, against the defendant as trustee in an absolute and express trust under the will of the deceased father, who had been administrator of the mother’s estate, to set aside an alleged settlement of the administrator’s account in the St. Louis Probate Court, on the ground of a false and fraudulent statement of the account, whereby the distrib-utees had been defrauded of their respective shares in the distributable surplus; and the defendant was charged as having received this surplus from the administrators of the estate, when the estate was settled under the will, to be disposed of in accordance with the trust therein contained. The party represented by the plaintiff was not one of the beneficiaries in the trust created by the will.

The defence rested upon the several grounds, first, that the other distributees were not made parties; second, the statute of limitations; third, that the fraud was not proved; and fourth, that there was no evidence of any settlement or allowance of the account rendered by the administrator.

As to the parties, the petition proceeds upon the assumption .that the other distributees are represented by the trustee defendant as beneficiaries under the trusts of the will, and upon the allegation and proofs that all the other distributees of the mother’s estate were such beneficiaries and so represented. To this it may be answered that as beneficiaries of the trust merely they were not therefore represented, also, in their character of distributees of their mother’s estate. *299 It may be conceded that this was a demand upon the trust property which existed prior to the creation of the trust, and that the absolute disposition of the trust property was vested in the trustee in such manner that the beneficiaries therein would be sufficiently represented by the trustee defendant in respect of the trust created by the wijl — Sto. Eq. Pl. §§ 149, 215; 2 Smith’s Eq. 389; Osborne v. Farmer, 2 Hare, 556. This would be so, upon general principles, independent of the statute which is relied on — R. C. 1855, p. 1217, § 2. This statute provides that a trustee of an express trust may sue in his own name without joining the beneficiaries with him; but it does not say that he may be sued in that manner. It may be seriously doubted whether it was the intent of this act that the same rule should be applied to a trustee defendant. However this may be- (and it is unnecessary to decide this question now), we think the general principles of equity pleading may be so far relied on in this case. But the trustee cannot be considered as representing the distributees at all in their character of .distributees. Their rights as such have nothing to do with the trust under the will. So far as their rights are concerned, they are adverse to the will. This is a proceeding by a distributee in pursuit of a fund which has come into the hands of the trustee under the will of the deceased administrator of the mother’s estate. The general doctrine of equity is, that, in such a suit, all the dis-tributees, as well as all residuary legatees, must be made parties, as well to avoid multiplicity of suits as to enable the court to make a complete and binding decree, disposing of the whole matter, unless the others are unknown, or cannot be found within the jurisdiction of the court — Sto. Eq. Pl. §§ 73, 89, 90; West v. Randall, 2 Mason, 181 ; Hallet v. Hallet, 2 Pars. Ch. 20; Daverne v. Fanning, 4 J. Ch. 199. There are some exceptions to this rule, as where, for instance, there is a certain and fixed trust fund, and each ces-tui que trust has a certain aliquot part of it distinct from the others, so that there is no common interest in the object of the bill as in the case of an assignee of one seventh part of *300 an ascertained trust fund standing in the name of a trustee. —Sto. Eq. PL § 212. We are by no means satisfied that this is such a case. Here the aliquot part is not fixed by any instrument or contract, but depends upon proof of matter of fact and calculation. Some sort of an account must be taken and stated. Where an account is necessary to ascertain the shares, or the parties in interest stand in different classes, or the entirety is in any way to be dealt with, all the distributees must be made parties before a final decree can be rendered; and it may very well be doubted whether the trustee has not a right to claim that this shall be done for his own protection, and whether he can be compelled to part with any portion of the trust fund until all the parties are brought before the court, so that the whole matter can be determined at once — Phillipson v. Galty, 6 Hare, 281; Adams’ Eq. 318. The distributees stand in different classes here. When the number, kinship, and class of the distrib-utees are ascertained by the evidence, the law fixes the shares. These facts are indeed alleged in the petition, and some evidence was produced; but'there was no party plaintiff or defendant before the court who was in a position to contest these facts, and the absent parties distributees could not be bound by the decree to be rendered. In some cases, as where the plaintiff sued alone for his one fourth part of the trust fund, and it appeared that other persons, not made parties, were entitled to the other three fourths, the court ordered the other three fourths to be paid into court, with liberty to those persons to apply for their shares — 2 Smith’s Eq. Jur. 309. But we find no case where a final decree was made for one share only. It does not appear that the other distributees were either unknown, or beyond the jurisdiction of the court. No good reason is given why they were not made parties. If they refused to join as plaintiffs, they could have been made defendants, under the statute — R. C. 1855, p. 1218, § 3, 4, 5. That they would have been proper parties, there can be no question ; and we are inclined to think they were, in the language of the statute, *301 necessary parties to a complete determination and settlement of the questions involved. A demurrer to the petition on the ground of a defect of parties was overruled. We think it should have been sustained. * Whether the decree rendered should be reversed on this ground alone, if there were no other; or whether or not, under special circumstances, or for any peculiar reasons appearing in the particular case, a final decree might not, in some instances, be affirmed, we will not now undertake to say. The rule, it seems, is not an inflexible one, and may be dispensed with where the peculiar cir- . cumstances are such as not to admit of its application, or the court would be ousted of its jurisdiction of the case, or where justice could not otherwise be done to a party who had shown himself entitled to relief — Cockburn v. Thompson, 16 Ves. 328; West v. Randall, 2 Mass. 181 .

The statute of limitations was no bar to the suit. The cause of action did not accrue to any person who had capacity to sue, until an administrator of the deceased distrib-utee had been appointed — Miller v. Woodward, 8 Mo. 169 ; Polk v. Allen, 19 Mo. 467 . To a suit by a distributee for his share against an administrator, holding the fund in trust, the statute of limitations does not apply. No lapse of time is a bar to a direct trust, or a fraud, as between trustee and beneficiary — Ruby v. Barnett, 12 Mo. 3 ; Decouche v. Savitier, 3 J. Ch. 190; 2 Smith’s Eq. Jur. 62. There is no express statute provision here which has a particular application to a case of this kind, and modifies the rule of equity. This was not a suit upon any bond, or other demand, which was governed by any special statute.

As to the three years’ bar of the administration act, this was not an ordinary indebtedness or demand against the estate, but a trust fund held in trust for the distributee; and the distributee being dead, there was no person in exist *302 ence who could sue for this money until an administrator was appointed, or until the will under which her devisee claimed was admitted to probate. A devisee cannot show a title to personal estate under a will until the will has been proved — Shepard v. Nabors, 6 Ala. 637 . As to the discovery of the fraud, it does not appear that the facts constituting the fraud were known to the devisee, before or after the probate of the will, so that no cause of action at law, or in equity, can be deemed to have accrued in her favor before letters of administration were granted to the plaintiff; and this suit was brought within five years after the date of the letters. Where there is no person to sue, no laches can be imputed — Reilly v. Chouquette, 18 Mo. 220 .

The other grounds of defence may be considered together. It is insisted that there was no proof of any settlement, final or other, nor of any fraud in the account settled. The only evidence which was adduced to establish these facts consisted in a copy of the affidavit and inventory, showing a debt and interest due to the estate from the estate of one Nash, an abstract of demand allowed against the estate of Nash for this debt, and a copy of an account rendered by the administrator by which it appears that he had charged himself with the amount of this debt and interest as collected from Nash’s estate, and credited himself “ by amount of my demand allowed by this court against the estate of John T. Nash, deceased,” the same sums for principal and interest, and a balance was struck in his favor. This paper is certified from the probate court to be a true copy of “the account rendered by said administrator, as the same now remains of record in the office of the judge aforesaid.” This was all the proof. It merely shows that this account rendered was handed in to the judge of the court and remained there among his papers. It is not even filed. There is nothing to show that it ever became a record, nor that any action was ever taken on it by the court, much less that the account so rendered was ever allowed by the court in any settlement whatever. A settlement must be the act and *303 judgment of the court, of which there must be some record. No record is produced. A settlement of this kind cannot be presumed here; nor is it to be supposed that the probate court would allow such an account without some proof of its correctness, but quite the contrary. It is rather to be inferred, if any inference were to be allowed, that a full record of the proceedings and final settlement would show that this account had not been allowed on settlement, or that the account was just and correct, and that the administrator had paid over all sums due when so ordered by the court. No certified copy of the full record and proceedings is produced. This paper does not appear to have any official character, much less that of a record. We are inclined to think it was not admissible in evidence at all by itself for any purpose. It was not even proved to have been in the handwriting of the administrator. It will be time' enough to consider the question of fraud when some competent evidence shall be produced to establish the fact. Moreover, it does not appear on this record in what maimer the deceased wife came to have a separate estate in this personalty.

Judgment reversed, and the cause remanded, with leave to the plaintiff to amend his petition.

Judge Wagner concurs; Judge Lovelace absent.

The causes of demurrer assigned were, 1. That petition did not show a cause of action ; 2. That the suit should have been brought against the personal representatives of P. M. Dillon.