
    PAGET v. PEASE.
    
      N. Y. Supreme Court, First Department, General Term ;
    
    
      July, 1889.
    1. Abatement.] Upon the death of a plaintiff trustee who has joined with his cestui que trust in an action to protect the trust fund, the action can only be continued by the substitution of the successor in trust as a co-plaintiff, in the place of the deceased.
    
    2. Same.] Where service by publication is attempted but is uncompleted at the time of the death of the plaintiff trustee, further publication is inoperative until proper amendment by bringing in the successor in interest.
    
    •3. Same.] Code Civ. Pro. §§ 758, 759—which provide for the continuance of an action by a surviving plaintiff—are inapplicable to the case of the death of a plaintiff trustee joined with his cestui que trust in an action to protect the trust fund.
    Appeal from an order, of the Special Term, adjudging that the order of publication herein ceased to be operative ■after the death of the appellant’s former co-plaintiff, before service by publication was complete.
    The facts appear in the opinion.
    
      Delano C, Calvin, for appellant.
    
      John S. Melcher, for respondent.
    
      
       Present Van Brunt, P. J., Macomber and Bartlett, JJ.
    
    
      
       As to the proper mode of appointment under the present law, see 2 Abb. New Pr. & F. 549, n. h. and forms, 1126,1142, etc., and Matter of Valentine, 3 Dem. 563; Matter of Waring, 99 N. Y. 114; affi’g 21 Weekly Dig. 420; Matter of Whitehead, 3 Dem. 227; Tompkins v. Moseman, 5 Redf. 402.
    
    
      
       See for a similar principle, Barron v. South Brooklyn Sawmill Co., 18 Abb. N. C. 352.
    
    
      
       Code Civ. Pro. §§ 758, 759, are as follows:
      “ § 758. In case of the death of one of two or more plaintiffs, or one of two or more defendants, if the entire cause of action survives to or against the others, the action may proceed in favor of or against the survivors. But the estate of a person or party jointly liable upon contract with others shall not be discharged by his death, and the court may make an order to bring in the proper representative of the decedent, when it is necessary so to do, for the proper disposition of the matter; and, where the liability is several as well as joint, may order a severance of the action so that it may proceed separately against the representative of the decedent, and against the surviving defendant or defendants.
      “§ 759. In case of the death of one of two or more plaintiffs, or one of two or more defendants, if part only of the cause of action, or part or some of two or more distinct causes of action, survives to or against the others, the action may proceed, without bringing in the successor to the rights or liabilities of the deceased party; and the judgment shall not affect him, or his interest in the subject of the action. But where it appears proper so to do, the court may require or compel the successor, or a person who claims to be the successor, to he brought in as a party, upon his own application or upon the application of a party to the action.”
    
   Bartlett, J.

This litigation grows out of certain transactions in reference to the estate of the late Paran Stevens, deceased. The complaint itself does not appear in the appeal papers, and the statement of its contents which they furnish is not as full as could be desired. Prom that statement, however, we gather the following facts. The plaintiff, Mary Fiske Paget, is the married daughter of Mr. Stevens. By his will he appears to have left a legacy of one million dollars to be applied for the benefit of his widow, Marietta B. Stevens, in which legacy Mrs. Paget has a reversionary interest expectant upon the death of her mother. Prior to her marriage, Mrs. Paget—then Miss-Stevens—executed a marriage settlement whereby she conveyed to trustees her reversionary interest in this one million dollar legacy. Since that time there have been various transactions between the executors of the Stevens’ estate, Mrs. Stevens, and the trustees of Mrs. Stevens, which as we understand the statement of the complaint, are believed by Mrs. Paget, to have injuriously affected her reversionary interest in the legacy to her mother. Among other things, she complains of a judgment which was rendered in a suit brought for the construction of her father’s will, and denounces such judgment as fraudulent and collusive. She also attacks an agreement whereby certain real estate was transferred to Mrs. Stevens at a specified valuation in satisfaction of the legacy which has been mentioned. The purpose of the present action is to set aside the judgment construing the will, annul the agreement, and enforce the payment of the legacy in cash, the claim to this relief apparently being based on the ground that the judgment and agreement have decreased or will operate to decrease the reversionary share of the plaintiff. Mary Fiske Paget conveyed, as already stated, to trustees under the ante-nuptial settlement. When this action was begun, the surviving trustee, under the settlement, Alfred Henry Paget, was a co-plaintiff with Mary Fiske Paget. It was necessary to serve the respondents, who are non-resident defendants, by publication ; and after such service had been commenced, but before it was completed, the plaintiff, Alfred Henry Paget, died. Thereupon the respondents, through an attorney Who appeared for the purposes of the motion only, moved at special term to set aside the service of the summons, and the court made the order which is now before us for review.

There is no suggestion that the cause of action itself has not survived to some one, but the question is whether the •■surviving plaintiff can go on with it, just as if her trustee had never been associated with her as a co-plaintiff and without taking any steps to have his successor in interest •made a party to the suit. The contingency here presented is not provided for either in section 758 or section 759 of the Code of Civil Procedure. Those sections relate to cases in which the cause of action in whole or in part survives to the surviving plaintiff or plaintiffs. But in the case at bar the plaintiffs must have sued in different rights,—the •one on account of her beneficial interest, the other as trustee —and whatever right of action belonged to the deceased plaintiff, Albert Henry Paget, as the appellant’s trustee, passed •on his death, not to the plaintiff, but to his successor in the trust. Therefore sections 758 and 759 have no application. Under the circumstances disclosed by this record, the proper ■course seems to be to continue the suit, after the appointment of a new trustee under the marriage settlement, by means of an amended complaint in analogy to the practice which prevailed in the court of chancery (Story's Equity Pleading, § 364; Doherty v. Matsell, 17 Abb. N. C. 377).

But the appellant argues that Alfred Henry Paget was not a necessary plaintiff ; and that she might have brought the suit alone and made him a defendant under section 447 •of the Code. If the complaint had been set out in full in the appeal papers, we should not be left in the dark, as we now are, as to the precise position assumed by each of the plaintiffs herein. But in such light as the affidavits afford, 5t would seem that the deceased trustee was more important as a plaintiff than the appellant herself. He held the legal* title to her reversionary interest in the million dollar legacy,, and he was the proper person to bring any action necessary for her protection (Western R. R. Co. v. Nolan, 48 N. Y. 513, 518). Indeed the case cited expressly holds that where the title to a fund is in trustees “ neither the cestui qui trust• nor the beneficiaries can maintain an action in relation to it, as against third parties, except in ease the trustees refuse to perform their duties in that respect, and then the trustees should be brought before the court as parties defendantand the court declare that it is the duty of trustees in whom a fund is vested to maintain and defend it against wrongful attack orín jury tending to impair its safety or amount. That Alfred Henry Paget was a proper plaintiff in the present suit is-therefore clear; and we are not prepared to hold that he was not a necessary plaintiff. As he represented interests which, when he died, did not devolve upon his co-plaintiff, his death brought the action to a stand-still. Ho jurisdiction over the respondents had yet been obtained, for the service by publication was incomplete. In effect, there had been no service of process upon them at all; and it seems dearth at where the rights of one of two plaintiffs do not survive to the other, the death of one before the service of process would make it an idle ceremony to serve the summons subsequently, until there had been a proper amendment.

We agree with the court below that the effect of the,death of the appellant’s co-plaintiff was to make the further-publication of the summons inoperative, and the order properly so declared. It should therefore be affirmed with costs-

Macomber, J., dissented.  