Ass'n for the relief of respectable, aged indigent Females v. Beekman

Harris, J. A difficulty presents itself at the very threshold of this case, which I have found myself unable to surmount. It is as to the right of the plaintiff to sue at all. The object of the suit is to establish a trust for charitable uses and to have it executed. The theory of the complaint is, that the testator, by his will, devoted the bulk of his estate to charity, and that the trustees appointed by him for that purpose, and those to whom the administration of the estate has been committed, have failed to carry his intentions into effect. It is a general rule, that a suit to enforce a trust can only be maintained by the trustee or the ceslui que trust. As against 569 a third person, the trustee, he being regarded as the representative of the cestui que trust, is the proper party to bring the action. As against the trustee himself, the suit can only be maintained by the cestui que trust. Where the trust is for a public charity, there being no certain persons who are entitled to it, so as to be able to sue in their own names as cestuis que trust, a suit for the purpose of having the charity duly administered, must be brought in the name of the attorney general. In such a case that officer, as representative of the public, would occupy the relation of cestui que trust to trustees. (Calvert on Parties in Eq. 309. Shelford on Mortmain, 414, citing Monill v. Lawson, Viner’s Abr. tit. Char. Uses, H, pl. 11.) Where the suit is brought by the heir or next of kin, or any one else interested in the estate, for the purpose of avoiding the trust, it is not always necessary to make the cestui que trust a party. In such a case, as in the case of a suit brought by the trustee to establish the trust, the trustee is regarded" as the representative of the cestui que trust. It is only where all the trustees concur in an alleged abuse of the trust, and there are no certain persons interested in the execution of the trust, as in the case of a public charity, that the suit must, ex necessitate rei, be instituted by the attorney general. (Bromley v. Smith, 1 Simons, 8, cited in Shelford on Mortmain, 420.) In this case, the plaintiff has no interest whatever in the execution of the alleged trust. It is neither a trustee nor a cestui que trust. The most that can be said of it is, that in case the trust should be established and executed, it is possible that the plaintiff might be made a beneficiary .of the trust. The saíne is equally true of. ten thousand other societies. The direction of the will is, that the residuary fund shall be paid to the financial officer of any one or more societies for the support of indigent respectable persons; giving to the trustees full discretionary power as to the disposition of the same. In the exercise of this power of appointment, the trustees are not restricted to any territory or country. Wherever societies of the description specified are to be found, there the testator’s bounty may be bestowed. 570 Such societies exist as far, at least, as the hounds of Christendom extend. How then can the plaintiff, though a corporation whose object is such as is described in the will, and therefore capable of being made a cestui que trust, be allowed to implead the parties in interest and compel them to litigate the questions involved in this suit 1 As well might the heir expectant bring his action to establish his inheritance before the death of his ancestor. All that can be. said of either is, that they occupy a position which renders it possible that, at some future period, they may have an interest in the • questions they seek to litigate. Principle and precedent are alike decisive against such an action. I do not feel at liberty, therefore, to proceed further in the examination of the questions which were discussed by counsel upon the argument, and which, when the case shall come properly before the court, it may become necessary to determine. The demurrer must be allowed, and the complaint dismissed with costs. [Columbia Special Term, October 9, 1854. Harris, Justice.}