Opinion
No. 27,044.
January 25, 1929.
Complaint bad because trustees were not made parties.
In action by beneficiary of express trust to have property, claimed to have been wrongfully diverted, restored to it, a demurrer to complaint was sustained because the trustees were necessary parties to the action, as property recovered would belong to them and not to plaintiff personally, and they were not named as parties. [Reporter]
Plaintiff appealed from an order of the district court for Hennepin county, Nordbye, J. sustaining a demurrer to his complaint on the ground that there was a defect of parties defendant. Affirmed.
Eriksson Zumwinkle and Harold Ranstad, for appellant.
N. F. Field, Cyrus A. Field and Junell, Dorsey, Oakley Driscoll, for respondents.
In this action, companion to No. 27,043, Whitcomb v. Wright, 176 Minn. 274, 223 N.W. 294, decided by an opinion filed herewith, plaintiff sues as a beneficiary of the express trust referred to in that opinion. The defendants are alleged to be the beneficiaries of a conversion of much of the trust property. Here again plaintiff is not suing to have the purposes of the trust declared accomplished and the trust terminated accordingly. He is suing to have restored to the trust property, or the proceeds of property, which he claims to have been wrongfully diverted by the trustees. Plainly if there can be any such recovery, it must be for the benefit of the trust estate as such and not for the benefit of plaintiff personally. It was upon that ground, the failure to join the present trustees, that a demurrer was sustained. From the order sustaining that demurrer the appeal was taken by plaintiff. For the reason stated, the order must be affirmed. If what plaintiff desires is their removal for misconduct and the appointment of their successors, he can easily make the present trustees defendants as such, and not leave to inference and an item of the relief prayed for, one of the major purposes of the action.
Order affirmed.