This is an action against executors and trustees to compel an accounting, to restrain them from exercising any function of their office and for their removal.
Howard L. Borden, late of Asbury Park, by his will appointed the defendants, his son, Howard Stanley Borden and his daughter-in-law, Eleanor Jane Borden, executors and trustees of his estate. They are the life tenants. The residuary legatees are their children, a son and daughter of full age and a daughter of 15. The plaintiffs are the attorneys who have been acting for the estate.
Two reasons impel me to dismiss the complaint: (1) the plaintiffs have no interest in the subject matter; and (2) the cause properly belongs in the Monmouth County Court, Probate Division.
(1) The statute providing for the removal of a fiduciary for cause provides that the removal shall be on complaint of
an interested person. R.S. 3:12-4, subd. c. The plaintiffs claim a sufficient interest to maintain this action by reason of the following provision of the will:
"I further direct that my Executors and Trustees shall retain and employ the firm of Durand, Ivins & Carton, Counsellors at Law, Asbury Park, New Jersey, as attorneys in connection with the administration of my estate and the trust herein established."
Plaintiffs are the attorneys named by the testator in the quoted paragraph. They were employed and have acted as attorneys and proctors for the estate. To maintain this action they must be interested persons. It has long been established law that, "no person can maintain an action respecting a subject matter in respect to which he has no interest, right or duty, either personal or fiduciary." Baxter v. Baxter , 43 N.J. Eq. 82 (Ch. 1887), affirmed 44 N.J. Eq. 298 (E. & A. 1888). Cf. Boyle v. Farmers Loan and Trust Co. , 101 Fed. 184 (C.C.A. 5, 1900); Adams v. Mellon , 39 Fed. 2 d 80, at p. 85 (D.C.N.D. Ill. 1930); Mosig v. Jersey Chiropodists, Inc. , 122 N.J. Eq. 382 (Ch. 1937). And this principle has been adopted in our procedural statutes and rules as in R.S. 3:12-4, subd. c , and Rule 5:3-6 here applicable.
Plaintiffs' contention that they have such an interest, having been designated by the testator in his will to serve as attorneys for his estate, finds no support in existing law. By the great weight of authority such a provision is against public policy and does not create a beneficial interest in the estate in favor of the named attorneys. The court will not commit a trust to one person and then require him to accept the services of the attorney; the relationship between attorneys and clients is too personal. Clapp, Wills and Administration, sec. 505, p. 456. Cf. Hersh v. Rosensohn , 125 N.J. Eq. 1 (Ch. 1939), affirmed 127 N.J. Eq. 21 (E. & A. 1939); Woodstown Bank v. Snelbaker , 136 N.J. Eq. 62, at p. 68 (Ch. 1944). The power to limit or control the judgment of the executor is also illustrated in
The law of the State of New York does not recognize any testamentary power to control executors in the choice of an attorney or counsel who shall act for them in their representative capacity. They may incur a personal liability for the conduct of their lawyers, and hence they are beyond the control of their testator in making the selection. Such a provision, therefore, as this will contains in reference to the attorney to be employed, is to be regarded merely as an expression of a wish on the part of the testator which it is most proper for the executors to observe, if it accords with their own judgment but which otherwise they are not bound to regard. In re Caldwell , 188 N.Y. 115, 80 N.E. 663 (Sup. Ct. 1907). Such a provision is not a trust and did not create a beneficial interest in the estate in favor of the named attorney; the clause is merely one of suggestion and not of direction or command. In re Thistlethwaite , 104 N.Y. Supp. 264 (Surrog. Ct. 1907). So strongly is this trend of the authorities, even though there be some to the contrary, that the rule is laid down in American and English Encyclopedia of Law (2 d ed.), vol. 11, p. 1241, ...