82 A. 93 | Conn. | 1910
It is claimed in support of this complaint that it seeks a recovery upon two grounds, to wit; first, that the estate of Wakelee is under a legal obligation to pay to the plaintiff a certain sum, and that the defendants, having received portions of the assets of that estate in its settlement, are in equity subject to the duty of refunding to the plaintiff so much thereof as may be necessary to satisfy his claim; and second, that the defendants have, through the medium of the *78 settlement and distribution of said estate, come into the possession of property which equity will regard as impressed with the trust in favor of the plaintiff's wards, with which the money originally received by Wakelee from the sale of the Indian lands was charged.
The complaint, viewed in the latter aspect, must fail for the reason, apparent at the threshold of an inquiry as to its sufficiency, that the allegations fail to trace into the estate distributed either any portion of said proceeds, or any other property into which any portion thereof became converted, or which in the transition of investment represented it. It is an essential condition of the exercise of the right to impress a trust upon property that it either be identified as the particular property charged with the trust, or that it be shown that the property originally so charged has, in some form or other, gone into that upon which it is sought to impress the trust. State v. Osborne,
As bearing upon the plaintiff's right of recovery in accordance with the theory first stated, the complaint is silent as to whether it is real or personal estate which he is seeking to pursue. If it is the former, he has mistaken his remedy, which is through the medium of an order of sale from the Court of Probate, after the validity *79
of his claim has been established. Hawley v.Botsford,
But the fact that the proceeding is single in form cannot be allowed to obliterate the fact that two successive independent steps are involved, and that the necessary parties for the taking of each of them must be before the court. The consolidation affects matters of procedure only. It does not justify short cuts to the end sought, which dispense with the taking of the required steps in the legal and proper way. This means that a necessary party to this action, in order that the validity of the plaintiff's claim may be adjudicated as a preliminary to further action, is the proper representative of the estate, be he administrator or executor. "Rights of action against a debtor, which the law continues in force after his death, are, upon grant of administration, demands against the administrator as the representative of the deceased, and may be established by suit against him as such representative. . . . The suit is against the administrator as the *81
representative of the deceased, and is mainly for the purpose of establishing the claim of the plaintiff to be a creditor entitled to payment by the administrator from assets in his hands." Caulfield v. Green,
The fact that the plaintiff, as a condition precedent to recovery, must establish the claimed indebtedness of the estate to him, involves the necessity on his part of alleging facts which lead to that conclusion. This he has failed to do. Apparently he bases his claim upon either a conversion by Wakelee to his own use of the net receipts of the land sale, or his diversion of them to uses not justified by the terms of the trust with which they were charged. The allegations made are by no means the equivalent of either of these propositions. A variety of things readily occur to one which would be at once consistent with the allegations and inconsistent with such a conversion or diversion. The complaint is therefore insufficient, and for a cause within the scope of the demurrer. *82
Other questions suggested by the demurrer do not require present consideration.
There is no error.
In this opinion the other judges concurred.