The opinion of the court was delivered by: BONSAL
William P. T. Preston, Sr. (the Grantor) who died in 1961, married Fanny, and they have two surviving children, Phyllis (whom plaintiff's attorney seeks to have added as party plaintiff) and the plaintiff, William, Jr. In 1930 the Grantor and Fanny separated, and in May, 1931 they were divorced. The Grantor later married the defendant Doris and they have one surviving child, the defendant Elizabeth. The remaining defendants, Simpkins, Redmond, and U.S. Trust Company, are Trustees of three deeds of trust made by the Grantor in 1931 and 1942.
In his complaint alleging diversity of citizenship, plaintiff asserts two causes of action:
1. that there was a breach of trust by the defendant Trustees in 1942 in that, contrary to the terms of the 1931 Trust, they reduced the principal thereof below two million dollars (to the extent of $464,740.71) when they transferred to the Grantor property of the value of $1,077,339.75; the complaint asks that the $464,740.71 be held by said defendants as constructive trustees for the benefit of plaintiff;
2. that the First 1942 Trust, as executed, failed to effectuate the intent of the Grantor; and that it should be reformed so as to provide that, upon termination, the Grantor's three children and their descendants will share equally, per stirpes, in the inheritance from the Grantor.
No claim is made of undue influence, coercion, or fraud by any of the defendants and it is conceded that there was none.
Defendants have moved pursuant to Rules 12(b) and 56(b) of the Federal Rules of Civil Procedure for an order dismissing the action and granting summary judgment on the grounds of res judicata, improper venue, and failure to join indispensable parties.
From the complaint, and the affidavits and Exhibits submitted by the parties, the following facts appear:
In 1922, the Grantor's uncle, William B. Thompson, died, leaving his property to his widow, Edith, for life, with remainder to the Grantor. In 1926 the Grantor transferred the remainder to defendants Simpkins and Redmond as Trustees. The Trustees were given the power to terminate the 1926 Trust in whole or in part, in which case the trust property would be returned to the Grantor. The 1926 Trust provided that one-half of the income of the trust be paid to the Grantor and one-half be paid to his wife, Fanny.
In 1930, Grantor and Fanny separated, and in March, 1931, pursuant to a separation agreement, the 1931 Trust was set up with the same Trustees. The Trustees terminated the 1926 Trust and transferred the property consisting of the Thompson estate remainder to the Grantor, who then transferred it, together with some real property, to the Trustees of the 1931 Trust.
The 1931 Trust provided, to the extent here relevant, that it was to continue "until the death of the Grantor and the death as herein defined of Fanny * * * whichever of said events shall last occur" and, subject to the power of termination given to the Trustees, the principal of the trust at the end of the trust term was to be distributed as follows:
$1,000,000 to the issue of the Grantor and Fanny then living, per stirpes, and the balance to such persons as the Grantor shall appoint by will, or, in default of appointment, to his issue then living, per stirpes.
During the term of the trust Fanny was to share in the income after the death of Edith (who died in 1941); and upon Fanny's death "as herein defined" Phyllis ...