49 How. Pr. 320 | The Superior Court of New York City | 1875
It is quite clear, I think, that these infant children of the trustee and his wife should be made parties to this action. By the will of John Gordon, the common source of title, the trustee is expressly authorized after the death of testator’s daughter, who takes a life estate, to apply the net rents, issues and profits of both the resyl and personal estate to the education and support of her children until they arrive at the age of twenty-one years, when the trustee, by the terms of his trust, must convey all the real and personal estate to the said children, share and share alike. These infant children are not charged with the unauthorized and. fraudulent acts of the deféndants, nor could they be; and, admitting that their vested estate as remainder in fee could not be touched by the alleged conduct of the parties charged, it cannot be contended that the provision made for their support and education during infancy should be put into the hands of a receiver without being represented. The question is not because they are not liable therefor no claim can be .made against them, as contended by plaintiff’s counsel. But the question is, their rights and interests being fixed by their benefactor under his testamentary act, can those rights be interfered with, even by a court of equity, without bringing them before the court ? The bare attempt by parties who in fact are the natural guardians, as well as their nearest blood relatione, to divest infants of their estate furnishes the best reasons for calling them before a court of equity when an appeal is made to .apply a remedy for so great a wrong. It is not possible to know what judgment may be finally made ; whether the property shall be ordered to be sold as prayed for, in order to adjust the several interests of all concerned. Assuming that the plaintiff shall succeed, I think that no complete determination of this ' controversy can be had unless these children be brought in. The defendants must have judgment on their demurrer.
