Malin v. Malin

New York Court of Chancery

Malin v. Malin

2 Johns. Ch. 238, 1816 N.Y. LEXIS 218, 1816 N.Y. Misc. LEXIS 12

CourtNew York Court of Chancery

DecidedNovember 14, 1816

StatusPublished

Cited by5 cases

This text of 2 Johns. Ch. 238 (Malin v. Malin) is published on Counsel Stack Legal Research, covering New York Court of Chancery primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Malin v. Malin, 2 Johns. Ch. 238, 1816 N.Y. LEXIS 218, 1816 N.Y. Misc. LEXIS 12 (N.Y. 1816).

Pincite

Opinion

The Chancellor.

[ * 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.

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The Chancellor.

[ * 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.

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Bluebook (online)

2 Johns. Ch. 238, 1816 N.Y. LEXIS 218, 1816 N.Y. Misc. LEXIS 12, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malin-v-malin-nychanct-1816.

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