Coram v. Davis

104 P. 518 | Mont. | 1909

MR. JUSTICE SMITH

delivered the opinion of the court.

We «hall take the appellants’ statement, stripped of the argument therein contained, as the basis of our decision. The situation depicted is a novel one, and counsel confess their inability to find in the books any substantial precedent for the same. Does the complaint state a cause of action against the trustees? After a careful study of the pleadings, we have arrived at the conclusion that it does not, and that the district court was correct in sustaining the demurrers thereto.

It appears that the trust has been partly executed, and that there remains in the hands of the trustees the sum of $92,275 on account of the claim of Thomas Jefferson Davis. "Whether this money belongs to Thomas Jefferson Davis or to the parties to the compromise agreement we are unable from the complaint to determine. At any rate, this amount is not due from the trustees until the final distribution of the estate, and plaintiffs do not claim the same; but they demand that the trustees be required to account to them for interest and profits thereon at this time. In view of the fact that it cannot be ascertained to whom the principal belongs, we think the court would not have been justified in assuming jurisdiction of the ease on account of the allegations relating to this matter alone. If the principal belongs to Thomas Jefferson Davis, the interest probably belongs to him also, if any interest is to be charged against the trustees. There is no allegation in the complaint that the trustees have made any profit from the actual use of the money. Neither is there any allegation that prior to the commencement of this action any demand was made of them for either interest or other profits. So- far as the complaint shows, the agreement between the parties was silent as to interest or profits. The courts have held that in certain contingencies a trustee is liable for interest, and in certain other cases that he is not. (See 28 Am. & Eng. Ency. of Law, 2d ed., 1080.) Whether or not a demand is necessary before suit brought depends upon the facts of the particular case. (Kerr v. Laird, 27 Miss. 544.) Ordinarily, a demand for an accounting is necessary, and the bill must contain an allegation that such demand has been made. (1 Ency. of Pl. & Pr. 98.) Again, there is nothing in the complaint to show that the trustees are claiming any compensation for their services, or to indicate that they have not been fully paid for all the services heretofore performed by them. Under these circumstances, a court of equity ought not to assume jurisdiction on account of the matter of compensation for the trustees’ services alone.

The most serious question is whether the complaint states a cause of action against the trustees on account of the fact that the plaintiffs are entitled to have the agreement creating the trust abrogated, for the reason that its object has been accomplished. Plaintiffs maintain that there is no longer any necessity for the intervention of the trustees. The learned district judge intimated in his order sustaining the demurrers an opinion to the same effect, and counsel for the respondents in their brief say: “Let the parties themselves get together and dispose of the property as they will. This we admit they can do, even without the trustees’ consent.” If the facts set forth in the complaint are true, we see no reason for longer continuing the trust agreement; and a court of equity will afford relief in proper cases. (See Russell’s Appeal, 75 Pa. St. 269; Tilton v. Davidson, 98 Me. 55, 56 Atl. 215; Matthews v. Thompson, 186 Mass. 14, 104 Am. St. Rep. 550, 71 N. E. 93, 66 L. R. A. 421; Eakle v. Ingram, 152 Cal. 15, 100 Am. St. Rep. 99, 75 Pac. 566.) But let us remember that the plaintiffs are invoking the aid of a court of equity. In order to do this, they must show affirmatively a necessity for the intervention of the court. (16 Cyc. 227, 265.) They must show that the trustees are necessary or proper parties to the action, and state facts sufficient to compel the latter to answer the complaint.

Let it also be remembered that since the commencement of this action the first parties to the trust agreement have by the plaintiffs been made defendants by leave of court. They may controvert the allegations of the complaint, or allow the matter to go by default, or, perhaps,, consent that the agreement be abrogated. If they pursue the latter course, then the trustees have confessedly no complaint to mqke; and, in view of the circumstances, it seems reasonable to suppose that if the trust agreement is indeed of no further benefit to them, and they have regard to their material welfare, which it is to be presumed they have, they will consent. At any rate, the trustees have no interest in their decision. They, the trustees, are not accused of misconduct, incomp eteney, neglect of duty, insolvency, or denial of their trust. In fact, no claim is made that they have not properly fulfilled that trust in every particular. They can have no possible objection to having the agreement set aside, either by consent of the parties or order of the court. (See Sturgeon v. Stevens, 186 Pa. St. 350, 40 Atl. 488.) They were appointed by the other parties to this action and can be removed by them; but they ought not to be haled into court and subjected to costs unless they have so conducted themselves, as that a cause of action can be stated against them or complete relief cannot be afforded the plaintiffs without their presence as parties. Neither of these conditions obtains in this case, so far as the allegations of the complaint enlighten us. The action can proceed to final judgment between the parties to the trust agreement, and, whatever the decision may be, need not and cannot concern the trustees.

We conclude, therefore, that, as no facts are alleged in the amended complaint sufficient to constitute a cause of action against the respondents, the judgment of the court below should be, and, it is, affirmed.

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Holloway concur.