Mead v. Walker, 15 Wis. 499

Mead v. Walker

15 Wis. 499 | Wis. | 1862

By the Court,

Dixoít, C. J.

Suit by the plaintiff as trustee of the separate estate of Mrs. Ann M. 0. Smith, a married woman, instituted in the circuit court of the county of Rock, to recover the sum of $11,510.41, alleged to be due from the defendant to the plaintiff-in his capacity of trustee. The plaintiff is a citizen of the state of New York, the defendant of Illinois, and Mrs. Smith, the cestui que trust, resides in this *502state. The defendant filed a petition for'the removal of the cause into the district court of the United States for this district, and offered the security prescribed by the 12th section of the Judiciary Act of 1789, chap. 20. 1 Statutes at Large, 79. It is conceded that there is nothing in the character of the parties of record which authorizes the removal. It is claimed under that clause of the section which provides for the removal of a suit commenced “ by a citizen of the state in which the suit is brought, against a citizen of another state,” upon the ground that Mrs. Smith, a citizen of this state, is the real party in interest. The circuit court refused to accept the security and allow the cause to be removed, and it comes up on appeal from that order. No question is made on the form or sufficiency of the application, and the controversy is reduced to the single question, whether the plaintiff or Mrs. Smith is the real party in interest

It is an elementary principle that at law a trustee is regarded as the real owner. The legal estate is vested in him, and the law looks only to that, and deals with it as if it were unaffected with any trust. It has, in general, precisely the same incidents and properties in the hands ©f the trustee as if he were the usufructuary owner, the relation between him and the cestui que trust being wholly unknown. Lewin on Trusts and Trustees, 242 (22 Law Lib., 123); Willis on Trustees, 80, 201 (8 Law Lib., 37, 95); 5 East, 138.

This being an action at law, we must look at it with the eyes of a court of law, and then how can we say, in answer to the question, Who is the real party in interest? that it is not Mr. Mead, the plaintiff? Clearly we cannot. He comes before us as suing in the capacity of holder of a legal estate in which we can recognize no other title or interest. He controls the litigation absolutely, may settle, give a release, receive and dispose of the proceeds, and do whatsoever else he pleases, regardless of the cestui que trust, subject only to the restraining power of a court of equity, in which alone her rights are cognizable. Hence we should say, upon general principles, and without reference to the decisions of the federal courts upon this particular point, that the plaintiff is the real party in interest.

*503Bat those decisions are in perfect harmony with the general doctrine, and it was no slip of the tongue when Justice Marshall said, in Chappedelaine v. Dechenaux, 4 Cranch, 308, that alien trustees, though they sued as such, were entitled to sue in the federal courts. And again, Bank of U. S. v. Deveaux, 5 Cranch, 91: “A trustee is a real person, capable of being a citizen or an alien, who has the whole legal estate in himself. At law he is the real proprietor, and he represents himself, and sues in his own right.” These authorities are decisive of this application, and there are no others inconsistent with them. As was said in Irvine v. Lowry, 14 Peters, 300, the true line of discrimination seems to be between those cases where the plaintiff is merely nominal, without interest or responsibility, his name being used for the exclusive benefit of another, and serving as the instrument or conduit through which the legal rights of others are asserted, and those in which he has an active and substantial interest and may himself control the action. — It is clear to us, therefore, that the district court would have had no jurisdiction, had the prayer of the petitioner been granted, and that the order refusing it must be affirmed.

Ordered accordingly.