#### Eugene V. MEYERDING, Plaintiff, v. Julius L. VILLAUME as an individual and as Trustee of Various Trusts, Defendant.

Civ. No. 2949.

United States District Court D. Minnesota, Third Division.

Feb. 2, 1957.

*152Pierce Butler and John L. Hannaford, St. Paul, Minn., for defendant, for the motion.

Roland J. Faricy and Richard A. Moore, St. Paul, Minn., for plaintiff, opposed.

DONOVAN, District Judge.

The motion by defendant to bring in additional parties plaintiff named in the moving papers, claiming them to be indispensable parties, presents for decision the vital question as to whether the life beneficiary and remaindermen of the several trusts involved are indispensable to the maintaining of the six causes of action based on six trusts, and praying a full accounting, removal of defendant as trustee and for other relief.

The complaint, with exhibits attached, alleges the trusts, life beneficiary and remaindermen. The motion has been timely made. No answer has been interposed. In lieu of support to the motion by affidavit, a stipulation descriptive of issue living and dead pertinent to the motion has been filed by counsel. Plaintiff, a citizen of the State of Oregon, is a remainderman. Defendant is the sole remaining trustee of the six inter vivos and testamentary trusts.

Resort to the complaint reveals the charge by plaintiff that the trustees, commingled, dissipated and improvidently dealt with trust assets, thereby in some instances enriching the trustees at the expense of the trusts. Without going into further detail, what has been said will suffice to determine the all-important question above stated.

The defendant trustee, the life beneficiary and several of the remaindermen, are citizens of Minnesota. Obviously, to add said beneficiary and remainder-men as parties plaintiff to the instant ease would eliminate diversity of citizenship between plaintiff and defendant, and this Court, as a consequence, would be without jurisdiction.

The thorough briefs and earnest oral arguments of counsel in support of and opposing the motion indicate views ably arrived at and diametrically different. As stated by the Court during oral argument this troublesome procedural problem makes alluring the persuasive reasons advanced by movant for divesting of jurisdiction, while suggesting as a prime motive lack of finality in the proceeding as now constituted and the threat of multiple litigation.

The gate appears wide and the road smooth to exclusive state jurisdiction, but I must confess to an inherent dread of the easy way out by passing work on to our capable and busy state judiciary. *153The dispensability or indispensability of the proposed additional plaintiffs is definitely a procedural problem.

At the outset it may be stated dogmatically that there is no prescribed formula for deciding the question of indispensability in all eases.1

If justice to the parties before the Court can be done without injury to absent persons, the motion should not be adopted as a means to the end of divesting the Court of jurisdiction.2 Defendant has the burden of showing that the present alignment of the parties is inconsistent with equity and good conscience in the sense that absence may work injury. What is the applicable rule in this situation?

> “The rule is that if the merits of the cause may be determined without prejudice to the rights of necessary parties, absent and beyond the jurisdiction of the court, it will be done; and a court of equity will strain hard to reach that result. * * * We refer to the rule established by these authorities because it illustrates the diligence with which courts of equity will seek a way to adjudicate the merits of a case in the absence of interested parties that cannot be brought in.” 3

The intricate features of the instant case, such as the claimed improper distribution of principal, need cause no anxiety for the reason that the absent remaindermen would benefit by restoration of improper or mistaken payments.4 The same reasoning applies to the alleged wrongful sale of stock by defendant. Relief granted in this respect would benefit the absent beneficiaries under the theory of suit. The Court can observe no clash of interest between plaintiff and the absentees under existing circumstances. The lack of standing of plaintiff to require restoration of income assuredly does not affect the question of indispensability of parties.

The parties that defendant seeks to add as plaintiffs would deprive this Court of jurisdiction by their joinder. This, in my opinion, goes beyond the contemplation of the applicable rule and tests.

In dealing with the removal of a trustee and cause for relief in connection therewith, one of the beneficiaries or remaindermen is sufficient to act as plaintiff in his own interest and in trust for the interested absentees. Our Court of Appeals approves the procedure adopted by plaintiff in the instant case in these words:

> “All that the * * * [plaintiff seeks] is an opportunity to demonstrate, by competent evidence, the truth of the allegations of [the] complaint. [ETe] *asks for no relief as against anyone except the defendant.*We think that [plaintiff is] entitled to a trial of [the] controversy with the defendant upon the merits.

> ***«•**

> “That a judgment for the trustee in this case would not or might not protect him against similar actions by other beneficiaries of the trust is, we think, an inadequate reason for denying the [plaintiff his] day in court.” 5 [Emphasis supplied.] *159turns in court, it could so provide. Cf. United States v. Dickey, 268 U.S. 378, 45 S.Ct. 558, 69 L.Ed. 1006. I do not, however, so read the statute. The purpose of § 55 appears to be to prevent wholesale revelation of confidential information to persons not determined to have a legitimate interest therein. The plaintiff, having made his earnings an issue, can scarcely say that they are confidential information in this case.

*154The authorities from appellate courts 6 cited and points emphasized by defendant’s counsel have not been overlooked. Comparison to the instant case makes clear that the cited appellate court decisions are distinguishable.

For the foregoing reasons the motion is denied.

1

. Niles-Bement-Pond Company v. Iron Moulders’ Union, 254 U.S. 77, 41 S.Ct. 39, 65 L.Ed. 145.

2

. Waterman v. Canal-Louisiana Bank Co., 215 U.S. 33, 30 S.Ct. 10, 54 L.Ed. 80.

3

. Mr. Justice Sutherland in Bourdieu v. Pacific Western Oil Co., 299 U.S. 65, 70, 71, 57 S.Ct. 51, 53, 81 L.Ed. 42.

For same procedural practice see Wesson v. Crain, infra [165 F.2d 6].

4

. Scott on Trusts, Vol. III, 2nd Ed., par. 254.2, pp. 2001, 2002.

5

. Judge John B. Sanborn in Wesson v. Crain, 8 Cir., 165 F.2d 6, 8, 9, 10.

6

. Franz v. Buder, 8 Cir., 11 F.2d 854; Baird v. Peoples Bank & Trust Co. of Westfield, 3 Cir., 120 F.2d 1001, 136 A.L.R. 693.