157 N.Y.S. 1053 | N.Y. App. Div. | 1916
The action is not in any sense to rescind a contract, but to enable the plaintiff to avail himself of an agreement to rescind the agreement made between himself and Clarence L. Fabre, and to enforce against Lucille S. Fabre a trust created by Clarence L. Fabre to fulfill such agreement. The allegations of fraud show whereby Clarence L. Fabre was induced to make the agreement to rescind. The personal representatives are not necessary parties. Mrs. Fabre is or is not, as the facts may appear, a trustee for the purpose stated, namely, to pay over the money upon receiving back the stock. No claims are made against the representatives of the decedent’s estate, but against a trust fund from which he had divorced himself in title and possession before his death. The other beneficiaries may or may not be necessary parties. If, in the judgment of the court, the necessity of their presence should be shown, they may be brought in, or the court may decline to proceed with the matter. The order, so far as it sustains the demurrer, should be reversed and the demurrer overruled, with costs; otherwise, the order should be affirmed, with ten dollars costs and disbursements to the plaintiff. Jenks, P. J., Thomas, Carr, Mills and Rich, JJ., concurred. Order, in so far as it sustains the demurrer, reversed, and demurrer overruled, with costs; otherwise, order affirmed, with ten dollars costs and disbursements to the plaintiff.