Read v. Bennett

The controversy in this case is over the sum of $1,647.73, in the hands of William T. Read, one of the appellants, who was trustee of William L. Bennett, an idiot. William L. Bennett, the cestui que trust, died before the commencement of this suit, intestate. No administrator has been appointed to administer upon his estate. John Read, administrator with the will annexed of Wilson Read, deceased, makes claim' to this fund as *588part of the assets of the estate of Wilson Read, deceased. John Read, administrator &c., has also appealed. The decree adjudges that the said trustee pay the balance in his hands, after deducting taxed costs and counsel fees, “ to such person as may hereafter be appointed administrator of William L. Bennett, deceased.” Both the appellants in the petitions of appeal challenge -the form of this decree, and John Read, in his petition of appeal, renews his. claim to this fund as administrator of Wilson Read.

An administrator of William L. Bennett, deceased, was a necessary party to this litigation while it was pending in the court of chancery. The conflicting claims of other parties to this fund could not be litigated in the absence of a legal representative of the deceased. ...

The decree cannot be sustained. It should be reversed and the record remitted.

For reversal — Depue, Dixon, Garrison, Gummere, Lippincott, Magie, Van S yokel, Barkalow, Bogert, Dayton, Hendrickson, Krueger, Nixon — 13.

For affirmance — None.