SECTION FOURTH.

WHEN A PERSON OTHER THAN THE REAL PARTY IN INTEREST MAY SUE.

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§ 99. *171. Statutory Provisions. There are two forms of the statutory provision, which differ, however, very slightly. The first is: "An executor, an administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted.1 A trustee of an express trust, within the meaning of this section, shall be construed to include a person with whom or in whose name a contract is made for the benefit of another.' The second form is a little more special: "An executor, administrator, trustee of an express trust, a person with whom or in whose name a contract is made for the benefit of another, or a person expressly authorized by statute, may bring an action without joining with him the person for whose benefit it is prosecuted. Officers may sue and be sued in such name as is authorized by law, and official bonds may be sued upon in the same way.' The only difficulties of interpretation presented by this section are the determining with exactness what persons are embraced within the three classes, described as "trustees of an express

1 [The use of the word "may" instead of "must" allows the action to be brought either by the trustee or the beneficiary. In Hutchison v. Myers (1893), 52 Kan. 290, 34 Pac. 742, the court said: But granting that Holmes, who is named as trustee in the instrument, is the trustee of an express trust, we see no reason why the beneficiary may not properly bring the action. . . . As will be observed, the provision authorizing the trustee to bring an action is permissive rather than mandatory in its terms, and hence will not preclude the maintenance of an action in the name of the real party in interest." And in Snell v. Harrison (1895), 131 Mo. 495, 32 S. W. 37, it was held that where a trustee of an express trust holding the legal title to land institutes a partition proceeding and joins the cestuis que trustent, who are minors, such joinder is not suffi

cient ground for the abatement of the action.]

2 N. Y. § 113 (449); Cal. § 369; South Carolina, § 136; Oregon, § 29; Nevada, § 6; North Carolina, § 57; [Utah, Rev. St., 1898, § 2902; North Dakota, Rev. Codes, 1899, § 5223; South Dakota, Ann. St., 1901, § 6072; Arizona, Rev. St., 1901, §§ 1299, 1300; Washington, Bal. Code, § 4825; Montana, § 570; Idaho, Code Civ. Pro. 1901, § 3157; Colorado, § 5; Arkansas, Sand. & Hill's Dig. § 5626; Connecticut, Gen. St., 1902, § 620; Wisconsin, St., 1898, § 2607; Indiana, Burns' St., 1901, § 252; Minnesota, St., 1894, § 5158; Missouri, Rev. St., 1899, § 541.]

8 Ohio, § 27; Kansas, § 28; Iowa, $2544; Oklahoma, St., 1893, § 3900; Wyoming, Rev. St, 1899, § 3469, Kentucky, § 21, in a somewhat different form; Nebraska, § 32.]

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trust,' 'persons with whom or in whose name a contract is made for the benefit of another," and "persons expressly authorized by statute to sue." It is plain that there are substantially three classes. The second and better form of the provision actually separates them, and does not represent one as a subdivision of the other. The first form in terms speaks of "the person with whom or in whose name a contract is made for the benefit of another," as an instance or individual of the wider and more inclusive group, "trustees of an express trust." It should be carefully noticed, however, that these two expressions are not stated to be synonymous; the former is not given as a definition of the latter. The section does not read, "a trustee of an express trust shall be construed to mean a person with whom or in whose name a contract is made for the benefit of another;" but simply that the latter shall be regarded as one species of the genus. There is here no limitation, but rather an extension, of the meaning, and the clause of course recognizes other kinds of trustees besides the party to the special form of contract, who is not very happily termed a "trustee." The section of the New York code, when originally passed, contained but the first sentence as it now stands. Some doubt arose as to its meaning, and a judicial decision having held that the phrase embraced, among others, a person with whom or in whose name a contract is made for the benefit of another, the legislature, to remove all possibility of doubt, added this judicial language as an explanatory clause. The two forms of the provision, although their phraseology differs somewhat, mean exactly the same thing, and establish exactly the same rule. As these two phrases, whether they be regarded as separated, or one as partially explanatory of the other, are the most comprehensive ones in the section, and present the main difficulties of construction, I shall discuss them first in order, and shall endeavor to ascertain what particular classes of persons were intended to be described by them. This discussion will consist in discovering, if possible, some general principle of interpretation by which to test each particular case, and in stating the instances which have been definitely passed upon by the

courts.

§ 100. *172. Meaning of Term, "Trustee of an Express Trust." Theoretical View. What is a "trustee of an express trust"? The section uses the term in its most general sense without limi

tation, so that when its full legal signification is ascertained, that must be its meaning in this connection. If the legislature has said, as in New York and other States, that, in addition to its generally accepted technical import, it shall also include certain persons who are not usually, nor perhaps with strict accuracy, denominated "trustees," this exercise of the legislative power within the domain of definition does not change, certainly does not lessen, its signification, as it stands without the explanatory comment. In Ohio, and in several of the States, the phrase is used alone, but accompanied by the clause which is descriptive of another class, and is not a mere partial explanation. We must find the true legal definition of "trustees of an express trust," and add to this the "persons with whom or in whose name contracts are made for the benefit of others;" the combined result will be the entire class intended by the legislature. It is obvious that the trust must be "express," in contradistinction to implied. In the large number of instances where a trust is raised by implication of law from the acts, circumstances, or relations of the parties, the trustee is certainly not embraced within the language of the provision. An express trust assumes an intention of the parties to create that relation or position, and a direct act of the parties by which it is created in accordance with such intention, outside of the mere operation of the law. In the case of an implied trust, the law, for the purpose of doing justice, and usually for the purpose of working out some equitable remedy, lays hold of the prior situation, acts, or circumstances of the parties, declares that a trust arises therefrom, and imposes the quality of trustee upon one, and of beneficiary upon another, in a manner and with a result that are often the furthest possible from their actual design. In an express trust the parties intend such a relation between themselves, carry out their intention by suitable words, and the law confirms and accomplishes the object which they had in view. An express trust primarily assumes three parties: the one who by proper language, creates, grants, confers, or declares the trust; the second who is the recipient of the authority thus conferred; and the third for

[The statute authorizing the trustee of an express trust to sue in his own name without joining the beneficiary, has no application to a case where the object of

the suit is to give the trustee powers not conferred upon him by the instrument creating the trust: Sampson v. Mitchell (1894), 125 Mo. 217, 28 S. W. 768.]

whose benefit the authority is received and held. It is true that in many instances the first-named parties are actually but one person; that is, the same individual declares, confers, receives, and holds the authority for the benefit of another; but the theory of the transaction is preserved unaltered, for the single person who creates and holds the authority acts in a double capacity, and thus takes the place of two persons. It is impossible, however, to conceive of an express trust as a legal transaction or condition, without assuming the prior intention, and the express language by which this intention is effected, and the trust created resting upon one as the trustee for the benefit of a second as the beneficiary; and, except as every grant, transfer, or delegation of authority and power is in a certain broad sense a contract, the notion of a contract is not essential to our conception of an express trust. The authority may be conferred by the public acting through governmental machinery, as in the case of officers, or by the intervention of courts, as in the cases of administrators, executors, receivers, and the like; or by private persons, as in innumerable instances of trusts relating to real or personal property; but there must be the intent to accomplish that very result, and this intent must be expressed by language or by some process of delegation which the law regards as an equivalent. Furthermore, in its accurate legal signification, a trust implies something which is the subject thereof. Although the word may have a more extensive meaning in its popular use, so that a trust may be spoken of where the trustee is simply clothed with a power to do some personal act unconnected with any property in which he has an interest or over which he has a control, yet this is not its legal import. An illustration of this legal notion of a trustee may be seen in the case of a guardian over the person alone of his ward, without any interest in or power over his estate, or the committee of the person of a lunatic. Such a guardian or committee, although possessing a power to be exercised for the benefit of another, is not a trustee; and the term, when applied to him, could be used only in a popular and not a legal sense. Such a guardian or committee would not therefore, by virtue merely of the permission granted in the provision of the statute under examination, be entitled to sue in his own name as a trustee of an express trust. In the light of this analysis of the expression as a term of legal import, it is plain that "a person

with whom or in whose name a contract is made for the benefit of another," is not necessarily a trustee. He may be; and whether he is or is not must depend entirely upon the nature and subject-matter of the contract itself. The contract may be of such a kind, stipulating concerning property in such a manner, that the contracting party will be made a trustee. On the other hand, it may be of such a kind, having no reference perhaps to property, or stipulating for personal acts alone, that the contracting party will not be a trustee in any proper sense of the word, but will be at most an agent of the person beneficially interested. There are numerous instances, therefore, in which an agent, who enters into an agreement for either a known or for an unknown principal, is permitted, in accordance with the particular clause under consideration, to sue in his own name. § 101. *173. Judicial View. I shall proceed to show, in the first place, how far the foregoing description is sustained by judicial authority. Few cases have attempted to define the phrase, "trustee of an express trust," in any comprehensive manner, for the courts have in most cases been content with determining whether the particular instance before them fell within the term. The following definitions or descriptions, however, have been given: "An express trust is simply a trust created by the direct and positive acts of the parties, by some writing, or deed, or will. And it is to be observed, in reference to § 4 of the code [of Indiana], that it does not assume to define the meaning of the term 'trustee of an express trust' in its general sense; it simply declares that these words, within the meaning of the section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another.' Evidently this provision was not intended to limit the meaning of the general term, express trust,' or to confine the operation of the statute to the particular class of cases referred to, but rather to enlarge its sense by including also that class within it."1 In another case it was said: "In order to constitute a trustee of an express trust, as I understand the statute, there must be some express agreement to that effect, or something which in law is equivalent to such an agreement. The case of factors and mercantile agents may or may not constitute an exception under the custom and usage of merchants. 1 Weaver v. Wabash, etc. Canal Co. Trs., 28 Ind. 112, 119.

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