204 Ill. App. 609 | Ill. App. Ct. | 1917
delivered the opinion of the court.
The original bill seeks a construction of the will of the decedent and that John E. Bryant, appellant, who is named in the will as executor and trustee, be confirmed as trustee. DeBoice, defendant in the original bill, is alleged to be administrator with the will annexed. The executor appointed by the will, for some reason that is not alleged, has not qualified. The estate is alleged to consist'of personal estate of the value of $25, fifty-four acres of land, and Lot 12 in Block B in Carle’s second addition to Clinton.
The appellee questions the propriety of incorporating the original bill in the record on an appeal from the decree on the cross-bill. The court in passing on the demurrer to the cross-bill must consider the bills together for the reason that the cross-bill must be germane to and an auxiliary of the original bill and pray for affirmative relief concerning matters in litigation under the original bill. Story’s Eq. Pl. & Pr. sec. 63; Shipman Eq. Pl. 406.
The only allegations contained in the cross-bill, that are not in the original bill, are those regarding the ill-will between John E. Bryant and Sophia A. Jones; the alleged statements by John E. Bryant concerning the value of the residence property and the allegation that the trustee named in the will is not a proper person to carry out the trusts committed to him by the testator.
The original bill does not ask for the appointment of a trustee, 'but only that the appointment of the trustee made in the will be confirmed. It is only by inference from that request that the contention might be made that, if he is not confirmed, he is to be removed and a new trustee appointed. That was not the purpose of the suit. The cross-bill does not ask that the trustee appointed by the will be removed except inferentially by asking that a trustee be appointed. If a defendant relies on the equities of his case for anything beyond a defense, and seeks affirmative relief, he must file a cross-bill asking for "such relief. 5 Encyc. of PI. & Pr. 632. It cannot be said that the relief sought by the cross-bill is merely incidental to the relief sought by complainants in the original bill. On a refusal to confirm the trustee appointed in the will, the original bill might be dismissed by complainant. Without an order removing the testamentary trustee and appointing another trustee, if such action should be required by equity, there would be a serious question whether the appointment of the trustee by the will is or is not in force, since he is not acting as executor. The facts alleged are not only a defense to part of the relief sought by the original bill, but call for affirmative relief based upon facts that are not alleged in the original bill. Wing v. Goodman, 75 Ill. 159; Hook v. Richeson, 115 Ill. 431.
We do not express any opinion concerning the merits of the case, yet a trustee appointed by a will may be removed, where the relations between the trustee and the cestui que trust are such as to interfere with the beneficial administration of the trust (Lorenz v. Weller, 267 Ill. 230), or the interest of the trustee is such as to be antagonistic to the cestui que trust because of his personal interest in the estate. (39 Cyc. 263; Yates v. Yates, 255 Ill. 66.) A court of equity has the power of removing a trustee for sufficient reason, but that power should be exercised sparingly when the appointment is by a will. There was no error in overruling the general demurrer.
From the will it appears that Jacques G. Bryant, a son of the decedent, was given a fourth interest in the estate. ' He is neither made a party to the cross-bill, nor does it explain why he is not made a party. The original bill states that he died before the testator, leaving a son George W. Bryant, who is a defendant to the original bill.
The children of Sophia A. Jones, the cross complainant, are by the will given the remainder in the fourth of which Sophia A. Jones is given the life use. The cross-bill does not state either that she has children or that she has none, neither does it give any reason for the omission. The original bill states that she has two children and makes them parties.
The valuation of the premises to be taken by the cross complainant is of much interest to all the parties interested in the estate. A high price increases the amount to be received by the son of Jacques G. Bryant, and decreases the value of the remainder in the estate to be received by the children of cross complainant after her death and vice versa. The fact that the will directs that she receive the part of the fourth of the estate of which she has the life use over and above the value of the residence does not necessarily mean that she shall haVe the possession and the management of it. Cort v. Massie, 171 Ill. App. 123.
Parties to actions are divided into necessary or indispensable parties, and proper but not indispensable parties. Necessary parties are those without whom the court will not proceed to a decree even as to the parties before it. “This class includes all persons who have an interest in the controversy of such a nature that a final decree cannot be made without either affecting their interests or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience. Accordingly, persons whose interests will necessarily be affected by any decree that may be rendered are necessary and indispensable parties.” 15 Encyc. of Pl. & Pr. 610. The cross-bill asks the court to determine the value of said Lot 12. That question will have to be determined either by the original trustee, if his appointment is confirmed, or in some other manner, and all the devisees under the will are interested in the decision of that question, and if it be done under the direction of the Circuit Court, then all interested parties must be parties to that proceeding or to any action preparatory to the determination of the value of the lot.
The objection of a want of necessary parties was made by the demurrer and was apparent on the face of the bill. It was made at the earliest opportunity. All the cestuis que trust, in a trust created by will, are necessary parties to a chancery proceeding to remove the trustee appointed by the will, and the removal of trustees named in a will and the appointment of new ones are invalid as to beneficiaries named in the trust who are not made parties. Butler v. Butler, 164 Ill. 171; Chandler v. Ward, 188 Ill. 322; LaForge v. Binns, 125 Ill. App. 527. The court erred in overruling the special demurrer which urged a want of necessary parties.
It is not proper at this time to discuss the decree rendered, which, without any prayer therefore in the cross-bill, construed the will without regard to the issues joined on that question on the original bill.
The decree is reversed because, of the error in overruling the special demurrer, and the cause is remanded with instructions to sustain the special demurrer on the ground that there is a lack of necessary parties.
Reversed and remanded with directions.