Matter of Estate of Straut

*210 Earl, J. Hotliing was presented to the surrogate but the petition and answer, and upon them he was asked to make his decision. The petitioner offered no proof and asked for no time that he might introduce proof: The order of the surro- gate recites that it was made upon the petition and answer, after hearing counsel for the petitioner and for Snider. Under such circumstances, it is not entirely plain what facts we have before us, or what facts must be assumed to be true. The material allegations of the petition, so far as they show any legal liability of Snider to account as executor of Edward J. Straut, were denied. He put in issue the allegations of the petition that the property of Jacob Straut came into the possession of Edward J. Straut, and denied that after the death of Edward J. Straut any of the property of Jacob Straut, or of his estate, came into his hands. Assuming these denials to be true, what account could Snider render ? Then, there is nothing for him to account for. Before Snider, as executor of Edward J. Straut, could be called upon to render any account as to the estate of Jacob Straut, it may be at least plausibly claimed that the petitioner should have furnished some proof that some portion of that estate came into the hands of Edward J. Straut, and that he had not in his life-time accounted therefor. But, if we assume, as was probably assumed by the surrogate, that the allegations contained in the petition, and the admissions contained in the answer together would otherwise have been sufficient to authorize an order against the defendant by the surrogate, requiring him to render an account, we think the action brought in the Supreme Court furnished a complete answer to the petition. That was an action brought by the trustees under the will of Jacob Straut, to compel Snider as the executor of Edward J. Straut, among other things, to account for all the property that came to Edward J. Straut, as executor of Jacob Straut. The allegations were full and ample, if sustained by proof, to authorize a judgment against Snider for. an accounting and for any balance that might be found due upon such accounting. The result of that litigation, *211 after a trial and the decision of all the courts, was a judgment dismissing the complaint upon the merits. If the petitioner claimed that that judgment was not based upon the merits, or that for any reason the adjudication proceeded upon some ground that would mot be a bar to the accounting sought in this proceeding, he should have shown it by competent evidence. In the absence of any proof, it must be assumed that that litigation involved everything alleged in the complaint, and that the adjudication covered the whole ground of the complaint, and that thus, as against the plaintiffs in that action, it was a final adjudication that "Snider, as executor of Edward J. Straut, was not bound to account for any of the estate of Jacob Straut, and that- ás such executor, nothing was due from him to such estate or to the trustees thereof. But this petitioner claims that he is not bound by that adjudication for the reason that he was not a party to that action. It is the general rule, undoubtedly, that one is not bound by an adjudication in an action to which he is not a party. But to this rule there are many well-recognized exceptions. Executors, administrators, assignees and receivers all act representatively as trustees of other persons, and yet in actions brought t>y them to recover trust property or to reduce trust property to possession, the beneficiaries and parties ultimately entitled to the benefit of the property are not necessary parties. Here these trustees, appointed to take the place of the trustees under the will of Jacob Straut,' had the legal title to, and were the legal owners of the personal property belonging to the trust estate (T. G. T. Co. v. C., B. & Q. R. R. Co., 123 N. Y. 37); and it has never been held that in an action by the trustees to reduce such property to possession, or to subject it to their -control, it is necessary to make the beneficiaries parties. In such an action they represent the whole title and interest, and their action, in the absence of fraud of collusion, is binding upon the beneficiaries. In the action brought by these trustees there was no question between them and the beneficiaries, and no question between the beneficiaries themselves. The only -question at issue was between the trustees and a stranger to *212 the trust, who was alleged to have in his possession, or to be liable to account for, certain property belonging to the trust, and in such an action it is well settled now that the beneficiaries. are not necessary parties. (Horsley v. Fawcett, 11 Beav. 565 ; Goldsmid v. Stonehewer, 9 Hare App. 38; Doody v. Higgins, Id. 32; Fowler v. Bayldon, Id. 78; Adams v. Bradley, 12 Mich. 346 ; Ashton v. Atlantic Bank, 3 Allen, 217; Boyden v. Partridge, 2 Gray, 190; Cary v. Brown, 92 U. S. 171; Kerrison v. Stewart, 93 id. 155 ; Western R. R. Co. v. Nolan, 48 N. Y. 513.) If the purpose of the action had been, among other things, to determine rights as between the beneficiaries-themselves, or as between the trustees and the beneficiaries, then it would have been necessary to bring them in as parties. The rule is thus laid down in Perry on Trusts, section 328; “ It is the duty of a trustee to defend and protect the title to the trust estate, and as the legal title is in him, he alone can sue and be sued in a court of law. The cestui gue trust, the absolute owner of the estate in equity, is regarded in law as a-stranger.” In Story’s Eq. Pleadings (9th ed.), p. 192, note a, it is said: “ Where a suit, brought by a trustee to recover the trust property, does not give rise to any conflict of interests-between the cestui gue trusts, and does not involve an investí-' gation into their relations with each other, the cestui gxt,e trusts are not necessary parties.” In Western R. R. Co. v. Nolan, (supra), it was. held that trustees who have the title to the trust fund are the proper parties plaintiff in an action to maintain and defend the fund against wrongful attack or injury tending-to impair its safety or amount, and that neither the cestui gue trust nor other beneficiaries can maintain such an action against a third person, except in case the trastees refuse to perform their duty, and then the trustees should be made parties defendant. In Cary v. Brown (supra), it was held that a suit brought by a trustee to recover trust property, or to reduce it to possession, in no wise affects his relations with his cestui gue trusts, and it is unnecessary to make them parties. In Horsley v. Fawcett (supra), the master of the rolls says: “ If the object of the bill were to recover the- fund with a view to its *213 administration by the court, the parties interested must be present; but it merely seeks to recover the trust moneys, so as to enable the trustee hereafter to distribute them conformably with the trust declared. It is, therefore, unnecessary to bring before the court the parties beneficially interested.” These trustees could have accounted and settled with Snider and discharged him without suit, and such settlement, if fairly and honestly made, would have been binding upon the beneficiaries. The rule as to the maintenance of actions by trustees in their own names, without the presence of the beneficiaries as parties, is somewhat enlarged by section 449 of the Code, which provides that a trustee of an express trust may sue without joining with him the person for whose benefit the action is prosecuted; and wherever a trustee may sue in his own name without joining the beneficiaries of the trust, in the absence of fraud or collusion, the beneficiaries are bound by the results of the action. If the trustees in that action had prevailed and recovered any property from Snider therein, the recovery would have inured to the benefit of this petitioner and all the other beneficiaries under the will of Jacob Straut. As Snider would have been bound by the judgment, as between him and any and all of the beneficiaries in the event of success by the plaintiff in that action, so they are bound by the results of the action in the event of his success. But it is claimed on behalf of the petitioner that the trustees were not trustees for him and did not represent him, and that as to one-seventh of the estate of Jacob Straut they were the trustees of his mother Maria Hopper and represented her only. In this the learned counsel for the petitioner is clearly mistaken. These trustees were to take the trust estate and hold it and manage it as trustees and pay the income thereof to Maria Hopper during her life, and after her death to pay the principal and remaining income to her children, share and share alike. During her life-time they held the principal of the estate, not only for her benefit, but for the benefit of her children, and after her death they had a trust duty to perform. By tire tenth clause of the will the trust would continue after *214 the death of Maria Hopper until her children reached majority, and might continue longer. Therefore, in holding and controlling the trust estate, and in reducing it to possession, the trustees represented not only the life beneficiaries, but those who were to take after their death. The suit brought by the trustees against Snider and others was really a litigation between them and Snider, and no other persons were necessary parties. The trustees, as plaintiffs, represented all the parties beneficially interested in the trusts under the will of Jacob Straut, and none of the persons thus benefically interested were necessary parties. Snider, as defendant, represented all the parties interested in the estate of Edward J. Straut, and none of them were necessary parties defendant to the accounting between the plaintiffs and Snider. Ho relief in that action was prayed for against anyone except Snider. It does not appear that there was any adjudication against anyone except Snider, and when he procured a reversal of the' judgment rendered against him upon the report of the referee and final judgment dismissing the complaint, there was nothing left of that action or of the adjudication therein. The petitioner filed his petition on the 14th day of December, 1887, more than thirty years after the death of Jacob Straut, more than six years after the death of Edward J. Straut, and four years after ' the death of Maria Hopper. After the lapse of so much time he cannot well claim that doubtful questions of law or of fact should be resolved in his favor. The order of the General Term should be affirmed, with costs. All concur. Order affirmed.