Plum v. Smith

McGILL, Ch

Bill in equity by Joseph S. Plum, executor of the will of Joseph Plum, deceased, against John B. Smith, administrator of the estate of Hannah Plum, deceased, and others, for the foreclosure of a mortgage. Heard on motion to strike out the general clause of an answer reserving exceptions in contravention of rule 208, and to dismiss ail of the answer which is filed by way of cross bill. Motion granted in part.

The original bill was filed to foreclose a $2,000 mortgage made on the 22d of March, 1892, by one Israel Bateman to the complainant and Hannah Plum, his co-executrix, upon land in Hunterdon county, conditioned for the payment of $2,000 upon the death or marriage of Hannah Plum, with lawful interest, payable annually from the 1st of April, 1892. The bill alleges the conveyance of the mortgaged premises by Israel Bateman to Joseph S. Plum, individually, on the 28th day of March. 1892, six days after the making of the mortgage; the recovery of a judgment by Hannah Plum against Joseph S. Plum on the 4th of December, 1894; the death of Hannah Plum, intestate, upon the 20th of July, 1895; and the appointment of John B. Smith as the administrator of her estate on the 27th of August, 1895. It prays process against Joseph S. Plum (individually) and his wife and Smith, as the defendants in the suit.

The defendant Smith answered the bill, claiming the validity and lien of the judgment against Joseph S. Plum, and, by way of cross bill against Joseph S. Plum, set forth that the mortgaged premises were the property of Joseph Plum in his lifetime; that Joseph Plum was the father of Joseph S. Plum and the husband of Hannah Plum; that Joseph Plum died testate, on the 15th of December, 1890; that by his will he gave to his son Joseph S. a pecuniary legacy, and gave his household furniture, except a wardrobe, to his wife, and the wardrobe to his daughter Mary; that the will made this provision: "I give and bequeath to my beloved wife, Hannah, the interest of two thousand dollars, as long as she lives and remains unmarried and my widow, to be left secured on my real estate, but on her decease or marriage to be equally divided among my children;" that, after the payment of the testator's debts and funeral expenses, the residue of the estate is given to the testator's three children in equal shares. The cross bill further represents that, after the death of Joseph Plum, the executor and executrix of the will sold the mortgaged premises to Mr. Bateman, taking back from him the mortgage in question; that Joseph S. Plum did not pay Hannah Plum the interest on the $2,000, and has not since her death paid it to her administrator, Smith; that, after the payment of the debts of Joseph Plum and the legacies bequeathed by his will, nothing of his estate remains but the mortgage sought to be foreclosed by the original bill; that Joseph S. Plum has no property out of which the judgment against him in favor of Hannah Plum can be made by execution; that the mortgaged premises will not sell for sufficient to pay the $2,000 mortgage and the interest in arrears thereon in full; and that, as son of Joseph Plum, Joseph S. Plum will be entitled to some portion of the recovery had upon that mortgage. Upon this allegation of facts the defendant Smith insists—First, that the interest of the $2,000 during the life of Hannah Plum, by the will of Joseph Plum, is made a first charge or lien upon the recovery to be had from the mortgaged premises, before the principal sum of $2,000, and that it is to be first paid to him in full, and not to abate proportionately with the corpus, if the proceeds of sale of the mortgaged land shall not be sufficient to pay both corpus and interest in full; and, second, that he should, in this suit, have recourse to the share of Joseph S. Plum in the corpus recovered in the foreclosure for the payment of the judgment of Hannah Plum.

The complainant moves to strike out a clause of the answer reserving exceptions and to dismiss the cross bill on two substantial grounds: Because 1) it "is multifarious, seeking a construction of the will of Joseph Plum, deceased, the settlement of his estate in this court, and is a creditors' bill exhibited against a co-defendant"; and (2) "it seeks to litigate matters between the defendant and complainant, and between the said defendant and his co-defendant Joseph S. Plum, which are not the subject of the original suit."

J. A. Bullock, for the motion.

John T. Bird and J. B. Huffman, opposed.

McGILL, Ch. (after stating the facts). The motion to strike out the clause of the answer which reserves exceptions must prevail. The 208th rule forbids the incorporation of that clause in an answer.

The questions which the cross bill seeks to present are—First, whether, in case enough shall not be realized to pay the whole $2,000, with the interest in arrears, the full interest should not, under a proper construction of the will of Joseph Plum, be paid to the administrator of the widow out of whatever may be realized for both principal and interest; and, second, whether the distributive share of Joseph S. Plum in the fund to be divided among the children of his father should not be subjected to the payment of the judgment which Hannah Plum recovered against him.

According to the allegations of the cross bill, the complainant is really a trustee, seeking the recovery of the trust fund which he has invested. With the recovery and immediate distribution the trust will terminate. The trustee is irresponsible. He is the owner of the property which is held as security for the fund. I think that his cestuis que trustent are necessary parties to his suit, and that the court should not suffer him to proceed to sale and have the possession ofthe money realized before the cestuis que trustent shall be, as parties, heard; and, under the circumstances, I also think that a cross bill which seeks a direct distribution of the whole trust fund by the court, when it shall be recovered, will justly and with eminent appropriateness lie. The difficulty at present is that upon the face of the original bill the special trust character of the $2,000 investment does not distinctly appear. The terms of the will under which the executor acts are not stated, and although the allegation that the mortgage was to continue till the death or marriage of Hannah Plum indicated that the investment was to answer a particular purpose, yet, from the will, that purpose, and cestuis que trustent concerned in it, are not ascertainable. A plea would properly have shown a lack of parties. The making of the objection of lack of parties and its determination should have preceded the cross bill, in order that all parties necessary to the final decision of the question raised by the cross bill should be before the court. I do not mean to say that the answer might not have been so framed as to cause the court to arrest the suit until the necessary parties should be brought in, so that they could be served with the answer by way of cross bill, but that course is objectionable, because it creates delay and the confusion and annoyance of a double hearing; for proofs will be taken before the arrest of the cause will come, and new parties will have the right to review the proofs taken.

I think that the objection is well taken that the cross bill is multifarious in that, while it seeks a construction of the will and distribution of the trust fund (a matter common to all the parties at present in the suits and the remaining children of Joseph Plum or the holders of their interest), it, at the same time, seeks to apply the share in the $2,000 to which Joseph S. Plum as cestui que trust may be entitled to, to the payment of a judgment against him held by a single defendant. Such joining of claims presents issues which are independent of each other, and which concern different parties, and in which all the parties necessary to the suit are not concerned, and issues which those parties should not all be obliged to follow or be burdened with. Story, Eq. P1. 270.

Besides, the judgment matter does not appear to be the proper subject of cross bill. It is an independent effort to subject a debtor's property to the payment of a judgment at law. It has no connection with, or relation to, the matter of the original suit. Its object can and should be accomplished by an independent bill, and through the instrumentality of injunction and receiver.

I will make this disposition of the motions: I will deny the motion to dismiss the cross bill, but will strike out that part of the cross bill which seeks relief with reference to the judgment. The complainant may amend his bill by reference to the second paragraph of the will of Joseph Plum, and the investment of the $2,000 in pursuance of the direction of that paragraph, and by making the other children of his father, or the holders of their interests, parties defendant to the bill; and he may by due process bring them into court. When the original bill shall be thus amended, and the new parties shall be brought into court, I will permit the cross bill to be amended so as to include those new parties, in order that it may be served upon them and they may answer it. If the original bill shall not be amended as above suggested, I will give the defendant Smith leave to withdraw his answer and cross bill, and file a plea, so as to take the objection of lack of parties. Costs will be allowed to the complainant upon the motion to strike out the clause of the answer which reserves exceptions, but they will not be allowed to either party on the motion to dismiss the cross bill. I have felt constrained to go somewhat beyond the motions, in dealing with this case, in order to expedite its proper presentation on the merits, because it concerns a trust in which the trustee occupies an anomalous position, which awakens the court's serious and jealous attention.