
    Morris Orlick, Appellant, v. Bertha Orlick, Respondent.
    
      Party — action by a husband to establish a trust, in property conveyed absolutely-by him to his wife, for the support of herself and her children and as a residence for himself— the children are not proper parties.
    
    Where a husband has conveyed land to his wife by a deed, absolute upon its face, in reliance upon his wife’s promise that she would hold the property in trust for the term of her natural life, would apply the. rents, profits and income thereof to the repair of the buildings on the land and to the support and maintenance of the husband, after deducting a reasonable sum for the support of herself and her children, and would use the premises as the joint residence of herself and her husband, and would forthwith make her will, devising the property to her husband for the term of his natural life, the children of the husband' and . .wife are neither necessary nor proper parties to an action brought by the-husband against the wife to establish the existence of the trust.
    Appeal by the. plaintiff, Morris Orlick, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office -of the clerk of .the county of New York on the 4th day of January, 1902, upon the decision of the court rendered after a trial at the New York Special Term, overruling the plaintiffs’ demurrer to the “ third and further defense” contained in the answer.
    
      Saul S. Myers, for the appellant.
    
      George M. S. Schulz, for the respondent.
   Patterson, J.:

The defendant, who is the wife of the plaintiff, holds the legal title to certain real estate in the city of New York which was conveyed to her by the plaintiff by a deed .absolute on its face. This action is brought to engraft a trust upon'this title, the allegations of the complaint in that behalf being.that the defendant induced the plaintiff to make the conveyance to her upon the representation j promise and agreement that if the plaintiff would make such conveyance she would hold the property in trust for the term of her natural life, would apply the rents, profits and income thereof to the repair of the buildings on the land, and to the support and maintenance of plaintiff, after deducting a reasonable sum for the support of herself and her children and would use the premises as the joint place of residence- and abode of the plaintiff and defendant and would forthwith make her will devising to plaintiff the property for the term of his natural life. In answer to the complaint the defendant denies making any agreement whereby the property was to be charged with a trust, and claims that that property was bought with her own - money, the title by mistake being placed in the name of her husband, the plaintiff, and that - the conveyance to her was for the purpose of correcting that mistake. She asserts that she is the absolute owner of the premises. She then proceeds to set up as a third and separate defense that at the times mentioned in the complaint when the contract or agreement therein set forth was alleged to have been made, the plaintiff’s and defendant’s family consisted of five: children, and that under the allegations of the complaint the said five children have an interest in the subject-matter of the action and are necessary parties and should be made parties to the action, and that they have not been joined with the defendant in the action and that, ■therefore, there is a defect of parties defendant. To this third defense the plaintiff demurred ; the demurrer was overruled and from the interlocutory judgment thereupon entered, this appeal is taken.

Under the allegations of the complaint, the children have no such interest in the subject-matter of the action as requires that they be made parties. If there were any agreement of the character mentioned in the complaint, specific performance of that agreement, if it could be awarded at all, could be decreed without the presence in the action of those children. It was an agreement exclusively between a grantor and grantee of real estate, expressing the condition upon which a conveyance of that real estate was made. It was a condition for the benefit of the plaintiff, one upon which he parted with the property. The children took no interest in the land by virtue of the conveyance, and whatever contribution to their, support would come from the rents, issues and profits of the land, if the trust were declared, would come entirely through the mother, who is to take in the first instance from the rents, issues and profits enough thereof for her and their support. They are not brought in privity with this agreement in any way. The right of the mother under the trust, as stated, would be personally to retain from the rents, issues and profits enough to support herself and those children who receive that support through her and not independently. They cannot claim, unless it be as against her, and then only during her natural life. The purpose of this action is the establishment of the trust as against the defendant. The issue is confined to an agreement with her. If no such agreement were made, the action fails, and if it were made, all rights- are established when the adjudication against her is made.

We think, therefore, these children were neither necessary nor proper parties, and that the demurrer should have been sustained, with costs.

The interlocutory judgment should be reversed, with costs, and judgment ordered sustaining the demurrer to the third defense, with costs.

O’Beien and Laugi-ilin, JJ., concurred ; Van Brunt, P,. J., concurred in result.

. Judgment reversed, with costs, and judgment ordered sustaining demurrer to the third defense, with costs. .  