Malin against Malin and others.Headnote
A mere nominal trustee cannot bring a suit in his own name, but the cestui que trust must be joined.If a person has religious scruples against being a party in a suit, he may, it seems, sue by his prochein ami.
Persons incompetent to protect themselves, from old -age, weakness of mind, or from some delusion or fanaticism, are entitled to the protection of the Court.
THE bill stated, that a religious society was formed at Jerusalem, in the county of Ontario, denominated “ The Society of Universal Friends,” of which Jemima Wilkinson was the founder and head. That for the support of Jemima, and the poor of the society, she purchased, on the 5th of January, 1792, certain lands, in the bill described, and paid the purchase money, and that, as a rule of the society forbade any estate being vested in her, she nominated one of her followers, by the name of Sarah Richards, to be her trustee, and the deed was taken in the name of the *said Sarah, without any expression of the trust in the deed. That Sarah Richards died on the 29th of December, 1795, and by her will devised the lands in question to the plaintiff, and devised other property to her only child, Eliza Richards. That the said Eliza, afterwards left the society, and married the defendant, Enoch Malin, and owing to some alleged imperfection in the devise, the defendants lay claim to the lands in question, under the said Eliza, and have entered thereon. That the said Jemima is restrained by her profession and conscience from becoming a party to any suit or proceeding at law whatever.
The defendants having ansxyered the bill, and issue being joined, and proof taken, the cause was brought on to a hearing.
Gold, for the plaintiff.
E. Williams, for the defendants..
It was objected, at the opening of the cause, at the hearing, that Jemima Wilkinson ought to have been made a party plaintiff, as she was the only person equitably entitled, according to the showing in the bill; and it was answered, that she could not be prevailed on, from scruples of conscience peculiar to the sect, to become a party.[ * 240 ]
As Jemima Wilkinson is the cestui que trust of the lands in question, from the showing in the bill, and the present plaintiff is but a mere nominal trustee, it is indispensable that she should be made a party, to entitle her to relief. The ease of Kirk v. Clark (Prec. in Ch. 275.) is precisely to the point; and the same rule was declared in Adams v. St. Ledger, (1 Ball & Beatty, 181.) The cause must, therefore, go off, to the end that the cestui que trust be made a party. In the case of Kirk v. Clark, the objection was taken, as in this case, at the hearing, *and the chancellor ordered the bill, answer, and depositions to stand, and the next day the cestui que trust was made plaintiff, by her next friend. If Jemima W. has religious scruples which cannot be surmounted, and this shall be made to appear, either by affidavit or the report of a master, as may be directed, perhaps she may be permitted to become plaintiff by her prochien amy. A person incompetent to protect himself, from age, or weakness of mind, or from some religious delusion or fanaticism, quern urget fanaticus error vel iracunda Diana, ought to come under the protection of the Court.
N. B. The counsel, afterwards, mutually consented that the name of Jemima W. should be added as a party plaintiff, and the cause, on the same day, proceeded to a hearing.