Plaut v. Plaut

New Jersey Court of Chancery

Plaut v. Plaut

44 N.J. Eq. 18

CourtNew Jersey Court of Chancery

DecidedFebruary 15, 1888

StatusPublished

Cited by2 cases

This text of 44 N.J. Eq. 18 (Plaut v. Plaut) is published on Counsel Stack Legal Research, covering New Jersey Court of Chancery primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Plaut v. Plaut, 44 N.J. Eq. 18 (N.J. Ct. App. 1888).

Pincite

Opinion

The Chancellor.

The bill contains all the allegations necessary to hold Solomon Plaut as executor, although he is not named as such in the prayer for process.

[20]*20Chancellor Zabriskie, in Evans v. Evans, 8 C. E. Gr. 71, says that it is mere form, and useless form, to require that either party should be styled as executor in the commencement or conclusion of the bill, where the bill contains proper allegations to show the official character and duties of the suitors.

This rule was followed in Ransom v. Geer, 3 Stew. Eq. 249, where Evans v. Evans was cited with approval.

The rule is consonant with reason and common sense, and must dispose of the first ground of demurrer.

The second objection is, that Mrs. Plaut, as an individual, is interested in the lease, and in her individual capacity should be a party to the suit. The bill distinctly alleges that Mrs. Plaut has assigned her interest in the lease to the estate of her husband, and thus shows that her interest, in her own right, in the the lease has terminated. But, aside from this declaration, I think that, under the other allegations of the bill, within the principle of Evans v. Evans, she may be treated as being before the court in both her representative and individual capacities.

Within familiar principles, the allegations of the bill establish a resulting trust in favor of Leopold Plaut. His brothers and wife took the lease in course of their management of his business, which he had entrusted to them, and, in accordance with his express desire, they made the first payment under it,, with his funds. They treated it as his property, and understood it to be such, and mow make no claim that they are the beneficial owners' of it. With the exception of the complainant, they refuse to give the benefit of it to Leopold's estate, and threaten to assign it to others. In such a condition of affairs, a court of equity should restrain the proposed transfer and establish the trust.

The bill then presents a case for equitable relief.

The demurrers will be overruled, with costs.

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The Chancellor.

The bill contains all the allegations necessary to hold Solomon Plaut as executor, although he is not named as such in the prayer for process.

[20]*20Chancellor Zabriskie, in Evans v. Evans, 8 C. E. Gr. 71, says that it is mere form, and useless form, to require that either party should be styled as executor in the commencement or conclusion of the bill, where the bill contains proper allegations to show the official character and duties of the suitors.

This rule was followed in Ransom v. Geer, 3 Stew. Eq. 249, where Evans v. Evans was cited with approval.

The rule is consonant with reason and common sense, and must dispose of the first ground of demurrer.

The second objection is, that Mrs. Plaut, as an individual, is interested in the lease, and in her individual capacity should be a party to the suit. The bill distinctly alleges that Mrs. Plaut has assigned her interest in the lease to the estate of her husband, and thus shows that her interest, in her own right, in the the lease has terminated. But, aside from this declaration, I think that, under the other allegations of the bill, within the principle of Evans v. Evans, she may be treated as being before the court in both her representative and individual capacities.

Within familiar principles, the allegations of the bill establish a resulting trust in favor of Leopold Plaut. His brothers and wife took the lease in course of their management of his business, which he had entrusted to them, and, in accordance with his express desire, they made the first payment under it,, with his funds. They treated it as his property, and understood it to be such, and mow make no claim that they are the beneficial owners' of it. With the exception of the complainant, they refuse to give the benefit of it to Leopold's estate, and threaten to assign it to others. In such a condition of affairs, a court of equity should restrain the proposed transfer and establish the trust.

The bill then presents a case for equitable relief.

The demurrers will be overruled, with costs.

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Bluebook (online)

44 N.J. Eq. 18, Counsel Stack Legal Research, https://law.counselstack.com/opinion/plaut-v-plaut-njch-1888.

Opinion

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