Laughlin v. Griswold

169 Wis. 50 | Wis. | 1919

Owen, J.

Respondents insist that plaintiff’s quarrel is entirely with the Wells Building Company and involves simply his right of possession of the trust securities which is denied him by that defendant; that as to that defendant he has a complete remedy at law; that no cause of action is stated against respondents; that they have no property in this state, which is a prerequisite to service of summons by publication, for which reasons the circuit court acquired no jurisdiction of them and the service of summons was properly set aside. This is not a broad view of the situation and its adoption would not give impetus to the wholesome tendency of courts to dispose of all controversies between parties or relating to one subject matter in one action.

The complaint shows this situation: The property sought to be recovered is trust property. Plaintiff is entitled to the sole or joint possession thereof. He is excluded from its physical possession by the Wells Building Company. His right to the sole possession is challenged by defendant Morris Tucker, who claims to be co-trustee by virtue of his appointment thereto by defendant Ellen Griswold to succeed Charles W. Baker, co-trustee under the original deed of trust, now deceased. The deed of trust provides:

"The box in which said securities are kept is to be opened only in the presence of both trustees, or by one of them in the presence of said Joseph L. Griswold, but an actual inspection of the trust securities at least once a year is enjoined."

Should the interference of the Wells Building Company with plaintiff’s physical possession of the securities be removed, his legal right to make the inspection in the absence of Tucker, who claims to be co-trustee, would be uncertain. As trustee he is„ entitled to an adjudication by a court of equity fixing his rights, duties, and liabilities with reference to this trust property, and, in accordance with the settled policy of this jurisdiction, to dispose of all such controversies in one suit. All parties making claims hostile to his rights in and to the property as he alleges them to be should be made parties to such an action.

The complaint alleges that the defendant Ellen Griswold claims the right and has assumed to appoint defendant Morris Tucker as co-trustee in place of Charles W. Baker, deceased, and that said Tucker “now claims the right to act as such trustee under said deed of trust, jointly, with the plaintiff, and is attempting to so act and has demanded of the plaintiff that the plaintiff recognize and treat the said defendant as such co-trustee under said deed of trust, and that he be permitted to have the possession and control of said bonds and securities, jointly with the plaintiff, and access to said deposit box, which demand the plaintiff has refused. . ..” The plaintiff, who is endeavoring in good faith .to discharge the duties which he has assumed under the deed of trust, should not be left to decide the question of Tucker’s right to act as co-trustee, at his own peril and at the risk of becoming a wrongdoer. Equity has jurisdiction over all matters relating to. trust property, and in the execution and administration of the trust, in all cases of doubt as to their rights and liabilities and what their conduct should be, .trustees are entitled to and-should seek instruction and direction from the court. 2 Perry, Trusts (4th ed.) § 476a; Hill, Trustees (4th Am. ed.) 843; Stephenson v. Norris, 128 Wis. 242, 107 N. W. 343.

The deed of trust, which defines the rights of the parties, is an executory contract relating to personal property of an easily movable nature and of a transient situs. No personal judgment is asked against any of the defendants. It is not an action over which any court has • exclusive jurisdiction.' No reason is perceived why a court having jurisdiction over the property is not an appropriate forum in which to maintain the action. Although respondents are all residents of Missouri, it may- well happen that parties similarly situated be residents of different states, in which case jurisdiction by any court except one having jurisdiction of the property would be difficult, if not impossible, of attainment.

It only remains to be considered whether the statute authorizes service by publication on respondents. Sec. 2639 provides:

“Service of the summons may be made without the state or by publication upon a defendant against whom a cause of action appears to exist, ... on obtaining an order therefor as provided in the next following section, in either of the following cases: ... (3) When the subject of the action is real or personal property in this state and the defendant has or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partially in excluding the defendant from any interest or lien therein.”

The situation as to respondents Ellen Griswold and Morris Tucker comes squarely within the terms of the statute. The complaint states a cause of action against them, that is, it asserts that they are claiming rights inimical to those of the plaintiff, and which the plaintiff has a right to have settled to the end that the trust estate may be orderly and lawfully administered. Morris Tucker claims the right to act as co-trustee under his appointment by Ellen Griswold, and Ellen Griswold claims the right to appoint a co-trustee. By their claims, therefore, they claim an interest in the personal property constituting the trust estate, and the relief demanded consists in excluding them therefrom’ We see no room to contend that the statute does not provide for service of the summons on them by publication thereof. This may not be so clear as to Emily Griswold, but to our minds it is just as certain. She responds to the call of the statute requiring that she have an interest in the property. True, it is not sought to exclude her from that interest, but the statute is in the disjunctive. It is not necessary that she have an interest her exclusion from which is a part of the relief sought. If she have an interest, the require'ments of sub. (3) are met. Does the complaint state a cause of action against'her? It does not in the ordinary sense. It does not seek to deprive her of anything. But this is an fiction brought by her trustee to have his duties determined. It is not necessarily an adverse proceeding, its purpose being to declare the status of the property and fix the rights and duties of the parties. It is generally held that in such an action all cestuis que trustent are necessary parties. Hill, Trustees (4th Am. ed.) 845. In this sense it does state a cause of action against her. The service by publication on respondents was authorized by and pursuant to the statute, and should not have been set aside..

By the Court. — Order appealed from reversed, and cause remanded for further proceedings according to law.

Kerwin and Rosenberry, JJ., took no part.