Meyer v. Meyer

• Decision Date: 10 January 1905
• Parties: MEYER v. MEYER.
• Court: Wisconsin Supreme Court

123 Wis. 538

102 N.W. 52

MEYER

v.MEYER.

Supreme Court of Wisconsin.

Jan. 10, 1905.

Appeal from Circuit Court, Waupaca County; Chas. M. Webb, Judge.

Action on a bond by Gertrude Meyer against William Meyer and Andrew Meyer. From a judgment overruling a demurrer to the complaint, defendant Andrew Meyer appeals. Reversed.

The substance of the complaint was as follows:

July 21, 1903, defendant William Meyer, as principal, and Andrew as surety, executed and delivered to the plaintiff an instrument in the following form:

“Whereas, William Meyer, of the county of Waupaca, State of Wisconsin, has been arrested and charged with seduction and bastardy upon one Gertrude Meyer, of the county of Waupaca, State of Wisconsin, committed on the 27th day of November, A. D. 1902.

And whereas, in consideration of the withdrawal and abandonment of said proceedings, said William Meyer, for himself, his heirs, executors and assigns, hereby consents and agrees to marry said Gertrude Meyer, and support her, and any family they may have, for a period of four years, commencing from the date hereof;

And said William Meyer, his heirs, executors and assigns, as principal, and Andrew Meyer for himself, his heirs, executors and assigns, as surety, do, jointly and severally agree to support and care for said Gertrude Meyer during the said period of four years from date;

And in case of the failure of said William Meyer, as principal, and Andrew Meyer, surety, to support said Gertrude Meyer, and the said family, they, each and severally, hereby agree to pay to the County Judge of Waupaca County, aforesaid, the sum of Five Hundred Dollars, or so much thereof as may be necessary to be used for the support of said Gertrude Meyer and said family, during the balance of said period of four years.

The support of the said Gertrude Meyer, and the amount to be paid her, if the same cannot be agreed upon by the parties hereto, shall be determined by the aforesaid County Judge, and shall be furnished and paid in the manner and way he may designate, but not to exceed the sum of One Hundred and Twenty-five Dollars in any one year, except the first, which shall be determined by said County Judge, if need be, said payments to be made in cash installments, monthly, unless said Gertrude Meyer and William Meyer shall live together as husband and wife.

In witness whereof, the said William Meyer, principal, and Andrew Meyer, surety, have hereunto set their hands and seals this 21st day of July, A. D. 1903.

William Meyer, Principal.

Andrew Meyer, Surety.

Gertrude Meyer.

In presence of

Llewellyn Cole,

Conrad Meyer.”

The defendant William Meyer has failed to comply with the provisions of such instrument in that he has refused to support plaintiff Gertrude Meyer and her child, otherwise than by payment to her of $10 July 28, 1903, on which date said defendant abandoned the plaintiff and since which time he has not visited her nor in any manner contributed to her support or the support of her child. Said defendant Andrew Meyer has failed to comply with the conditions of such instrument and refused to do so, otherwise than by the payment to plaintiff of $15 October 1, 1903, and $10 November 20, 1903.

August 19, 1903, a child was born to plaintiff and said William Meyer. She has incurred expenses necessary to the support of herself and child since the making of the said instrument, to the amount of $100. She has exhausted all her means in caring for herself and child and is now unable to work and support either herself or the child. She has repeatedly requested defendants to comply with the conditions of the aforesaid agreement, but they have neglected and refused to do so, except as aforesaid. By reason of the breach of said agreement on the part of defendants, plaintiff has sustained damages to the amount of $500. She demands judgment requiring defendants to pay to the county judge of Waupaca county, Wis., $500, to be used for the support of herself and her child, according to the terms of said agreement, and judgment for costs and disbursements in this action, and such other and further relief as may be just.

Defendant demurred on three grounds, viz.: 1. Want of legal capacity to sue. 2. A defect of parties plaintiff, in that if there be a cause of action upon the instrument described in the complaint, it is in favor of the county judge of Waupaca county, Wis. 3. For failure to state facts sufficient to constitute cause of action.

The demurrer was overruled generally with leave to answer within 30 days on payment of $10 costs. Defendant Andrew Meyer appealed.

George Hoxie (Kreutzer, Bird & Rosenberry, of counsel), for appellant.

Olen & Olen, for respondent.

MARSHALL, J. (after stating the facts).

Several questions are presented by appellant's counsel for consideration. An affirmative answer to either of them will be sufficient to condemn the complaint on some one of the grounds of demurrer insisted upon. We will state verbatim, or in effect, each of counsel's propositions, and consider the same.

1. Has plaintiff legal capacity to sue in view of the disabilities of married women?

The first answer thereto is, the complaint is entirely silent as to whether the plaintiff is or is not a married woman. Appellant's counsel assume, because the bond recites that the bastardy proceedings were agreed to be discontinued in consideration of an agreement on the part of defendant, William Meyer, to make the plaintiff his wife, that such agreement was consummated. That does not follow. If the marriage agreed upon occurred it is very strange that counsel omitted to plead it in some way. The second answer to the question is, conceding that plaintiff is a married woman, the beneficial right under the bond is her sole and separate property in regard to which she is expressly authorized by statute to sue in her own name. Section 2345, Rev. St. 1898. The third answer, making the concession as before, is that the husband is an adverse party, in which situation a married woman is expressly authorized to sue in her own name by section 2608, Rev. St. 1898.

2. Is there a defect of parties plaintiff, in that a cause of action upon the bond, if any there be, is in favor of the county judge as trustee of an express trust?

The answer to that is, if it be true that respondent only has a beneficial interest in the bond, while the legal right to sue on it is in the county judge, the error in proceeding upon an inconsistent theory goes to the cause of action, not to a defect of parties plaintiff. If, as appellant contends, the bond in effect runs to the county judge as trustee of an express trust, then, of course, he is the holder of the legal title to the trust fund,--is the proper party to sue to recover the same and without joining with him the respondent. Section 2607, Rev. St. 1898. A cestui que trust cannot sue to enforce a trust, except in case of necessity, by reason of failure, or refusal, or inability of the trustee to perform his duty in that regard. In that case the trustee is a necessary party, and a failure to make him such renders the complaint open to attack for defect of parties. Obviously the pleader did not proceed on that theory as the complaint is silent as to any reason why the action was brought in the name of the cestui que trust.

3. Does the complaint state facts sufficient to constitute a cause of action?

On that subject several points are made by counsel.

(a) No cause of action is stated in favor of the plaintiff or any one because the legal title to proceed upon the bond, if there be any, is in the county judge. We see no escape from that proposition. The meaning of this language is unmistakable: “In case of failure of said William Meyer, principal, and Andrew Meyer, surety, to support the said Gertrude Meyer and the said family, they each and severally agree to pay to the county judge of Waupaca county, aforesaid, the sum of five hundred dollars, or so much thereof as may be necessary,” etc. The evident purpose of the instrument was to make the county judge the trustee of the fund mentioned therein, with the right to call the same in for disbursement for respondent's benefit, as in his judgment that might be deemed proper. The whole sum of $500 was not promised to be paid absolutely, but only “so much thereof as may be necessary, to be used for the support of said Gertrude Meyer,” etc. To be used by whom? By the county judge, manifestly. Therefore he was not only expected to ask for, receive and recover the fund, but active duties on his part of a discretionary character were contemplated, viz.: To determine the amount and manner in which the fund should be used for the benefit of respondent.

Few principles are better understood than the one above adverted to, viz.: That the trustee of an express trust only can sue to defend or recover the trust fund, except where he neglects or refuses to perform his duty in that regard, and then the cestui que trust may sue, joining the trustee as plaintiff or defendant, as the case may require. As plaintiff, generally speaking, but when he is adversely interested or refuses to let his name be so used, then as defendant. Since there is no allegation in the complaint, as before indicated, as to why respondent instituted the litigation, the complaint is fatally defective. The fact that she is beneficially interested in the execution of the trust does not, by any means, make her the real party in interest, within the meaning of the statute. In contemplation of law the trustee of an express trust is primarily the interested party. Before the Code he could sue in his own name, joining the cestui que trust. By force of the statute he is the proper party to bring the action, without joining those secondarily interested.

(b) The marriage of the parties extinguished any liability on the bond.

We may well suggest, for all that is stated in the complaint, there was no marriage. Moreover, by section 2341, Rev. St. 1898, a...