Butler v. Halsey — 4 Sarat. Ch. Sent. 354

Majority

p. 354

Butler and Wife v. Halsey and others.

Oct. 23 ;

Oct. 28, 1846.

Headnote

Where “ liberty to apply” simply, is reserved in a decree, the court may proceed upon it summarily.

But when the reservation is, “ liberty to apply for further directions,” the cause must be regularly set down for a hearing, and the court will not proceed on a petition only.

When by reason of new facts, additional and auxiliary provisions are requisite to carry the decree into effect, after disposing of the points reserved; such facts may be brought forward by petition, and the court will hear the petition, with the cause itself on the further directions-

The same course may be pursued, when there has been a change of parties or the accession of new parties in interest, since the decree, but not of such a character as to require a formal revivor.

A guardian ad litem for such new parties as are infants, will be appointed ex parte, to represent them on the petition and hearing,

In this cause, there had been a decree made, settling certain rights in the separate estate of Mrs. Butler, in a suit in which she and her husband were complainants, and her infant children then in esse, and her trustee, were defendants. The decree contained, “ liberty to apply to the court for further directions on the foot of this decree,” whenever a child of Mrs. Butler should attain the age of twenty-one years. On that event, a question would arise as to the distribution of the income, which was not decided by the decree.

The New York Life Insurance and Trust Company, became the trustees of the fund, and Mrs. Lippiuco'tt, one of the children of Mrs. Butler, (and who was married after the decree,) had become twenty-one years of age. Two children of the complainants, were born after the entry of the decree, who had rights in the estate. It was claimed in behalf of the children that they wpre entitled to the whole income, after Mrs. L. became of age; and that a decree in another suit, had established their right. This was denied by Mr. Butler. Upon this, the trustees presented their petition, setting forth the conflicting claims, and their doubts on the subject, and asking the direction of the court as to the payment of the incomp.

p. 355

B. Robinson, for the petitioners.

A. L. Robertson, for Butler and wife.

A. S. Johnson, for Lippincott and wife.

W. H. Bell, for the infant defendants.

H. W. Warner,

claiming to represent Mr. Butler, and allowed to speak to the cause as amicus curios, objected that nothing could be done without setting the cause down for a hearing on further directions and bringing in as parties the post-nati, and Mr. Lippincott.

The decree in this cause gave to the parties interested, “ liberty to apply to the court for further directions on the foot of this decree,” whenever a child of Mrs. Butler’s became of age.

This event has occurred, and the petition is presented by the trustees of the fund for further directions.

When liberty to apply is reserved in a decree, the court may proceed upon it summarily ; but the court does not so proceed upon further directions. For the latter purpose, the cause must be regularly set down for a hearing. Indeed, in strictness there must be an ex parle order obtained for bringing it to a hearing.

In this decree, I think the liberty to apply is controlled by the clause for further directions, so that the further equities mentioned in connection with it, can only be determined upon a hearing of the cause in due form. But when by reason of new facts, some additional and auxiliary provisions are requisite on the further directions, to carry into effect the decree already made, after settling the points reserved ; those facts may be brought forward by petition, and the court will hear the petition with the cause itself. So when there has been a change of parties, or an accession of new parties in interest subsequent lo the decree, but not of such a character as to require a formal revivor.

In this case there have been such changes. The New York

p. 356

Life Insurance and Trust Company, have become trustees in the place of the defendant Halsey; two children have been born to Mrs. Butler since the entry of the decree, who are entitled to rights under it: and her daughter, who has become of age, is married to Mr. Lippincott.

It is obvious that no order can be made in the cause, without giving to these parties an opportunity to be heard; and equally so that this petition does not present all of them to the court, independent of the other difficulty already stated in regard to the further directions.

By combining this petition, or another setting forth the births and marriage adverted to, with á hearing of the cause for further directions; I think the object of the parties may be obtained, without the expense and delay of a supplemental bill. I will therefore direct, that either of the parties who appeared in the original suit, may bring it to a hearing for further directions, ■with leave to Lippincott and wife to present their claims and interests by a petition to be brought on with the cause, on notice to the other parties, and that the petition of the New York Life Insurance and Trust Company, stand over to be heard at the same time. The petition of Lippincott and wife will state the birth of the new parties, and previous to its being served with notice of its intended presentation, it must be brought forward ■ex parte, to enable the court to appoint a guardian for the two infants who are such new parties, to represent them on the hearing.

The costs of the parties who appeared on this application "will be reserved.