44 N.J. Eq. 18 | New York Court of Chancery | 1888
The bill contains all the allegations necessary to hold Solomon Plaut as executor, although he is not named as such in the prayer for process.
This rule was followed in Ransom v. Geer, 3 Stew. Eq. 249, where Evans v. Evans was cited with approval.
The rule is consonant with reason and common sense, and must dispose of the first ground of demurrer.
The second objection is, that Mrs. Plaut, as an individual, is interested in the lease, and in her individual capacity should be a party to the suit. The bill distinctly alleges that Mrs. Plaut has assigned her interest in the lease to the estate of her husband, and thus shows that her interest, in her own right, in the the lease has terminated. But, aside from this declaration, I think that, under the other allegations of the bill, within the principle of Evans v. Evans, she may be treated as being before the court in both her representative and individual capacities.
Within familiar principles, the allegations of the bill establish a resulting trust in favor of Leopold Plaut. His brothers and wife took the lease in course of their management of his business, which he had entrusted to them, and, in accordance with his express desire, they made the first payment under it,, with his funds. They treated it as his property, and understood it to be such, and mow make no claim that they are the beneficial owners' of it. With the exception of the complainant, they refuse to give the benefit of it to Leopold's estate, and threaten to assign it to others. In such a condition of affairs, a court of equity should restrain the proposed transfer and establish the trust.
The bill then presents a case for equitable relief.
The demurrers will be overruled, with costs.
