It is claimed in support of this complaint that it seeks a recovery upon two grounds, to wit; first, that the estate of Wakelee is under a legal obligation to pay to the plaintiff a certain sum, and that the defendants, having received portions of the assets of that estate in its settlement, are in equity subject to the duty of refunding to the plaintiff so much thereof as may be necessary to satisfy his claim; and second, that the defendants have, through the medium of the *Page 78 settlement and distribution of said estate, come into the possession of property which equity will regard as impressed with the trust in favor of the plaintiff's wards, with which the money originally received by Wakelee from the sale of the Indian lands was charged.
The complaint, viewed in the latter aspect, must fail for the reason, apparent at the threshold of an inquiry as to its sufficiency, that the allegations fail to trace into the estate distributed either any portion of said proceeds, or any other property into which any portion thereof became converted, or which in the transition of investment represented it. It is an essential condition of the exercise of the right to impress a trust upon property that it either be identified as the particular property charged with the trust, or that it be shown that the property originally so charged has, in some form or other, gone into that upon which it is sought to impress the trust. State v. Osborne, 69 Conn. 257,262, 37 A. 491; Skiff v. Stoddard, 63 Conn. 198,232, 26 A. 874; Central National Bank v. ConnecticutLife Insurance Co., 104 U.S. 54; Matter of Cavin v.Gleason, 105 N.Y. 256, 262, 11 N.E. 504. The allegation that Wakelee, in 1871, had in his hands a sum of money held in trust is by no means an averment, even argumentatively, that he had that money, or other property representing it, when he died, seven years later. He might have long since squandered it, might have used it for the benefit of the cestuis que trust, or might have passed through an intervening period of penury.
As bearing upon the plaintiff's right of recovery in accordance with the theory first stated, the complaint is silent as to whether it is real or personal estate which he is seeking to pursue. If it is the former, he has mistaken his remedy, which is through the medium of an order of sale from the Court of Probate, after the validity *Page 79 of his claim has been established. Hawley v.Botsford, 27 Conn. 80, 83; Davis v. Weed, 44 id. 569, 577; Griswold v. Bigelow, 6 id. 258, 265; Seymour v.Seymour, 22 id. 272, 279. If it is the latter, a different situation is presented. Here, as in the other case, the first step in the course of procedure is to judicially establish that the plaintiff has a valid claim, now enforcible against Wakelee's estate, and collectible out of its assets, assuming that there were such in the hands of an administrator or executor undistributed. This the plaintiff's prayers for relief plainly recognize. It is accomplished, when the claim is allowed, by a judgment in an action against the administrator or executor. This judgment is a finding that the estate is liable to pay the claim which is sued upon. Bacon v. Thorp,27 Conn. 251, 270; Davis v. Weed, 44 id. 569, 577, 579;Caulfield v. Green, 73 id. 321, 324, 47 A. 334. The existence of such a claim and its amount having been thus determined, the next step, in the event that the assets of the estate have been distributed, is a proceeding in equity, whose purpose is to reach out for and reclaim these assets, or sufficient of them, to the end that they may be appropriated to the satisfaction of the established claim. Booth v. Starr, 5 Day, 419; Davis v. Weed, 44 Conn. 569; Davis v. Vansands, 45 id. 600. Most frequently these two successive steps, when necessary, have been taken in independent proceedings. In Booth v. Starr, however, we said that the proceedings incident to them both might be consolidated into a single equitable action, in which the debt might be established and the relief sought obtained against those ultimately liable. Certain of the objections then urged against this course are now removed by the abolition, through the adoption of the Practice Act, of all distinctions between procedure at law and in equity, and the conference upon courts of the authority to give *Page 80 both legal and equitable relief in a single action. We have held that this change in procedure has made it proper to make the establishment of the debt an incident of creditor's bills, thus dispensing with the former requirement that it be established by independent preliminary proceedings before the bill could be brought to secure equitable aid in reaching property beyond the reach of execution. Vail v. Hammond, 60 Conn. 374,383, 22 A. 954; Huntington v. Jones, 72 Conn. 45,49, 43 A. 564. Whether or not a proceeding such as that approved in Booth v. Starr is in the strict sense a creditor's bill as sanctioned by our practice, the analogy between the two, at least, is perfect as respects both the end sought and the preliminary fact necessary to be established, and we see no reason why the two necessary steps to the attainment of the object sought may not as well be taken in one action in the one case as in the other.
But the fact that the proceeding is single in form cannot be allowed to obliterate the fact that two successive independent steps are involved, and that the necessary parties for the taking of each of them must be before the court. The consolidation affects matters of procedure only. It does not justify short cuts to the end sought, which dispense with the taking of the required steps in the legal and proper way. This means that a necessary party to this action, in order that the validity of the plaintiff's claim may be adjudicated as a preliminary to further action, is the proper representative of the estate, be he administrator or executor. "Rights of action against a debtor, which the law continues in force after his death, are, upon grant of administration, demands against the administrator as the representative of the deceased, and may be established by suit against him as such representative. . . . The suit is against the administrator as the *Page 81 representative of the deceased, and is mainly for the purpose of establishing the claim of the plaintiff to be a creditor entitled to payment by the administrator from assets in his hands." Caulfield v. Green, 73 Conn. 321,323, 324, 47 A. 334. A distribute is not such a representative. His presence as party cannot give jurisdiction for the rendition of a general judgment adjudicating an obligation of the estate. It might be that without its proper representative a qualified judgment might be rendered which would be conclusive as against the distributee, and sufficient for the purpose of reclaiming the res in his hands. But he is entitled, for his possible future protection, to have such an adjudication as will not only conclude him, but all parties against whom he might wish to proceed for contribution. In Booth v. Starr, 5 Day, 419, the administrators were parties. See also Davis v. Vansands, 45 Conn. 600,605. There is a defect of parties here which would prevent the plaintiff's recovery upon the case that he has attempted to set up. The demurrer, however, does not reach this defect.
The fact that the plaintiff, as a condition precedent to recovery, must establish the claimed indebtedness of the estate to him, involves the necessity on his part of alleging facts which lead to that conclusion. This he has failed to do. Apparently he bases his claim upon either a conversion by Wakelee to his own use of the net receipts of the land sale, or his diversion of them to uses not justified by the terms of the trust with which they were charged. The allegations made are by no means the equivalent of either of these propositions. A variety of things readily occur to one which would be at once consistent with the allegations and inconsistent with such a conversion or diversion. The complaint is therefore insufficient, and for a cause within the scope of the demurrer. *Page 82
Other questions suggested by the demurrer do not require present consideration.
There is no error.
In this opinion the other judges concurred.