
    Chatfield Leonard, as Receiver of the Property of Curtis A. Barnum, a Judgment Debtor, Respondent, v. Curtis A. Barnum and Laura Barnum, Defendants, Impleaded with Carlton B. Pierce, Appellant.
    
      Action to compel a trustee to account — it must be brought against him as trustee, not as an individual — all persons entitled contingently to 'any interest in the estate should be made parties.
    
    The complaint in an action brought by a receiver of the property of Curtis A.
    Barnum appointed in proceedings supplementary to execution, against the said Ciirtis A. Barnum, Laura Barnum, his mother, and Carlton B. Pierce, alleged that the judgment debtor’s father died leaving a will, by which he devised certain real estate to the judgment debtor in fee simple, subject to a life estate in his mother, and with the further provision that if the judgment debtor died without leaving descendants prior to his mother, the property should pass tb other persons; that Carlton B. Pierce, who was the sole trustee under the will, sold the testator’s real estate pursuant to authority contained in the will and thereby obtained a fund of $4,000 -which he held in trust to invest and to pay the income thereof to the judgment debtor’s mother during her life; that some seventeen years had elapsed since the receipt, of such fund and that the trustee had never accounted for the sale; that a portion of the fund had been lost through the fault and negligence and unauthorized investments of the trustee and that the remainder was in grave danger of waste and depreciation.
    The relief demanded was that the trustee render an account of his proceedings, including a statement of the amount and manner of the investment of said fund; that he withdraw all foreign investments; that he replace and make good such sums as had been lost through foreign investments, or other violation of his duties as trustee; that he give security for the faithful performance of his duties as trustee; that his accounts be judicially settled, and that the said trustee be enjoined from making any further foreign or other illegal investments of said fund or committing waste thereof.
    Upon a demurrer interposed to the complaint by the defendant Pierce, it was Held, that the complaint was demurrable in that no cause of action was alleged against the defendant Pierce individually, and that there was a defect of parties defendant, in that the devisees, who would take the estate in case the judgment debtor died prior to his mother without leaving descendants, were not made defendants;
    That a trustee can only be called upon to account in his representative capacity, and that all parties interested in the fund are necessary parties to an action brought to compel such an accounting.
    Patterson, J., dissented.
    Appeal by the defendant, Carlton B. Pierce, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of January, 1904, upon the decision of the court rendered after a trial at the New York. Special Term overruling the said defendant’s demurrer to the plaintiff’s complaint.,
    
      Carlton B. Pierce, for the appellant.
    
      Clarence L. Barber, for the respondent.
   Ingraham, J.:

The complaint alleges the recovery of several judgments against the defendant Curtis A. Barnum in the years 1885 and 1887, the issue and return unsatisfied of executions upon said judgments, the institution of proceedings supplementary to execution, the appointment of a receiver of the judgment debtor and the appointment of the plaintiff as such receiver ; that by the last will and testament of the father of the judgment debtor, which was admitted to probate on June 4, 1883, certain real property situated in Otsego county was devised to the judgment debtor in fee simple, subject to the life estate of his mother, the defendant Laura Barnum, with a further provision in the will that in case of the death of the said Curtis A. Barnum, the judgment creditor, without leaving descendants, prior to the death of his mother, the said property should pass to the Other devisees therein named; that pursuant to authority contained in the said will the said property was sold in 1886 and the proceeds, amounting to the sum of $4,000, were paid over to the defendant Carlton B. Pierce, who was by the will constituted sole trustee, to invest the same and to pay the income thereof to the judgment debtor’s mother during her life; that the judgment debtor is insolvent and has no property within this State, except his interest in the said fund of $4,000, and is-a resident of the State of Pennsylvania; that the said sum of $4,000 was paid over to the defendant Carlton B. Pierce, as trustee appointed under the will, in or about the year 1886 upon the sale of the said brick house property made by said trustee pursuant to the provisions of the, said will, and he has never rendered any account as such trustee, and that before the.commencement of the action the plaintiff made a written demand on said trustee for an accounting", but he has refused and neglected to render such accounting; that on information and belief a portion of said fund has been lost through the fault and negligence and unauthorized investments of said trustee, and the remainder is in grave danger of waste and depreciation; that in order to make an advantageous sale of said vested remainder, it is essential that the court and intending purchasers shall know the value and nature of the securities in which said fund is invested, as well as the amount thereof which has survived said seventeen years of investment; that it is also .essential that the said fund shall be safely invested, as the plaintiff is not to receive .the same until the falling in of the life estate. Wherefore, the plaintiff asks judgment that the trustee render an account of his proceedings, including a statement of the amount and manner of the investment of said fund; that he withdraw all foreign investments; that'he replace and make good such sums as have been lost through foreign investments, or other violation of his duties as trustee; that he give security for the faithful performance of his duties as trustee; that his accounts be judicially settled,, and that the said trustee be enjoined from making' any further foreign or other illegal investments of said fund or committing waste thereof.

To this complaint the defendant Pierce demurred, upon the ground that there is a defect of parties defendant, in that the persons described as the “ other devisees therein named” are necessary defendants in the action, and also upon the ground that there is a defect of parties defendant in that Carlton B. Pierce, as trustee, is a necessary defendant, and that the complaint does not state facts sufficient to constitute a cause of action. This demurrer was overruled, and from an interlocutory judgment overruling it the defendant Pierce appeals.

The defendant Pierce is here sued individually, and he is asked to account as trustee of an estate held by him under a will of the father of the judgment debtor, in which the other defendant has a life interest. It would seem to be apparent that, as an individual, the defendant cannot be compelled to account for property that he holds as trustee. The complaint does not attack the will under which the appellant is acting, but distinctly alleges that the appellant received this sum of money as trustee under the will. There is no allegation of the complaint that affects the ownership of this fund in controversy or justifies an action in relation to it against the trustee personally. The fund belongs to the estate of the decedent and is held by the trustee under the will. From the allegations of the complaint it would appear that the title had vested in the trustee, and it seems to follow that he can only be called to account as trustee and not as an individual. As to this demurring defendant individually, no cause of action is alleged, and as he is only sued individually, his demurrer should- have been sustained. A trustee can only be called upon to account in his representative capacity, and in any action to compel him to account all parties interested in the fund are necessary parties. An accounting which entails expense upon an estate should only be ordered where all parties interested in the estate are before the court. The complaint alleges that, in the event of the judgment debtor’s dying before his mothei1, this property is to go to other devisees named in the will, and in any action for an accounting by the trustee such devisees are necessary parties. The subject in controversy in this action is the fund of $4,000 held by the defendant Pierce as trustee. The object of the action is to compel him as trustee to account for that fund. The complaint alleges that there are others, not parties to the action, who would be entitled to that fund in the event of the death of the judgment debtor before the person entitled to a life interest therein ; and for a complete determination of the question involved,namely, an accounting of this trust fund, it would seem that those parties to whom the fund would go, in the event df the death of the judgment debtor prior to the death of the person for whose life the property" is held, must be parties to the action.

I can see no distinction in this respect between a final accounting and an interlocutory accounting. A trustee should not be called to account by each person claiming an interest without joining the others also interested, so that the court can finally adjudicate the rights of the several parties to the fund up to 'the time of the accounting. No.r is the fact that this is called an action auxiliary to the main action to assert the plaintiff’s title to the fund .of $4,000 an answer to this objection. Just what is meant by an action auxiliary ” to the main action is not apparent. The plaintiff either has a right to cause the trustee to account, or he has not; If he has, he is bound to make all those interested in the fund parties to the action, so that there can be a final adjudication as to the condition of the fund and the trustee’s accounts can be passed. The, allegation of the complaint, that in the event of the death of the judgment debtor prior to the life tenant the property is to be paid to other devisees named in the will, is an allegation that those other devisees are in existence, ready to take in the-event of the happening of the contingency named in the will.

I think, therefore, that the demurrer should have beén sustained on the ground that there-is no cause of action alleged against the defendant Pierce individually, and that there is a defect of parties defendant; and the judgment appealed from must be reversed, with costs, and the demurrer sustained, with costs, with leave to plaintiff to amend upon payment of costs in this court and in the court below.

Van Brunt, P. J., McLaughlin and Laughlin, JJ., concurred; Patterson, J., dissented.

Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs in this court and in the court below.  