Majority
p. 457
Frederick William Newton, Surviving Executor of and Trustee under the Last Will and Testament of Thomas Connock Elliott, Deceased, Respondent, v. William Jay and Egerton L. Winthrop, Jr., as Substituted Trustees for Anna Benkard Hunt under the Deed of Trust of the 31st day of July, 1872, Appellants, Impleaded with Anna Benkard Hunt and Others, Defendants.
Headnote
Creditor's suit—when the reservation,, by the settlor of a trust,, of a beneficial interest to herself does not render it void — her debts are enforcible against her beneficial interest — a conclusion of law that a trust deed was void, not supported by facts-— it is not admitted by a demurrer—where the fund is all personalty an action in equity is not ntcessary to reach it — the remedy is by execution — an action to .establish a mortgage of the fund given by the beneficiaries as an equitable lien, sus tained— right of foreign executors as such to sue in the State of New York.July 31, 1873, a woman in contemplation of her marriage1 with a citizen of Great Britain, which marriage subsequently occurred, executed a deed to certain persons as trustees, whereby she assigned toiihe latter all the real and personal property which she possessed in trust to collect the income and pay the same to her or for her use during her life, and also to pay to her from time to time such part of the principal as they should deem proper, and upon and after her death to divide the real and persmal property among her appointees by will or by other instrument in writing in the nature of a will, and in default of such appointment among such persons as would take the same if it were real estate situate in the State of New York, of which the settlor had died seized, intestate and unmarried. In 1879 she executed an instrument whereby she purported to exercise the power of appointment reserved to her in the instrument creating the trust. By such appointment she directed that after her death the trustees should continue to hold the trust property and pay the
p. 458
income thereof to her husband during the term of his natural life, and upon his death should set over the real and personal estate unto her children and the issue of her deceased children in equal shares per stirpes and not per capita. She also reserved to herself the right to vary such disposition in certain par-: ticulars by her last will and testament or by an instrument in the nature thereof, and further reserved to herself, in the event of the death of all her children without issue, and during her own or her husband’s lifetime, the absolute right of otherwise disposing of the trust estate by her last will and testament.
On July 1, 1898, after the death of her husband, the settlor of the trust obtained a loan in England, and as security for the repayment thereof, she and her three adult children, her remaining child being a minor, executed a mortgage covering, or purporting to cover, the trust estate. In said mortgage the settlor of the trust released the further exercise of the power of appointment over the trust estate, “ to the end and intent that the said trust estate shall vest absolutely subject to the life interest of the said Anna Benkard Hunt in ” her four children in equal shares, and said adult children mutually covenant to divide equally, notwithstanding any appointment. The mortgage not being paid, the executors and trustees under the will of the mortgagee brought an action in a court of general jurisdiction in England against the mortgagors, with the exception of one Of the children who had died in the meantime, for the recovery of the money secured by the mortgage, which action resulted in the recovery of a judgment :by said executors and trustees. Thereafter the said executors and trustees brought an action, in the State of -New York against the substituted trustees of the trust and the surviving mortgagors, alleging that the mortgagors, who resided in Paris, and had no intention of coming to the United States, had no property in England upon which execution could be levied, or any other property than the trust estate; that the mortgagors had urged the trustees to make payment out of the principal of the trust estate, but that the trustees refused to do so.
The complaint further alleged that the trust deed was void, as to personal property, as against all of the creditors of the settlor, because of the fact that it was made for the settlor's own benefit and because she reserved an advantage out of the personal property transferred; that the trust was fraudulent and void both as to real and personal estate as against the plaintiffs by reason of the fact that it was a voluntary conveyance of all of the settlor’s property for her own benefit.
The plaintiffs demanded judgment, among other things, that the trust deed be declared void so far as it affected the plaintiffs’ claim, and that the mortgage security be declared a lien upon the trust funds in the hands of the defendant trustees, and that they be directed to pay and discharge the mortgage out of the trust funds.
Held, that a demurrer interposed by the defendant trustees to the complaint should be overruled;
That the reservation by the settlor of a beneficial interest in the trust estate, being only incidental and partial, did not render the trust deed either fraudulent or void, although her beneficial interest might be reached in equity arid appropriated to the payment of her debts;
p. 459
That the allegation that the .trust deed was fraudulent, not being supported by the facts set forth in the complaint, must, therefore, be regarded as a conclusion • of law, which was not admitted by the demurrer;
That even if the trust deed was fraudulent and void, the trust estate being composed solely of personal property, there was no necessity for a resort to equity for relief, inasmuch as the fraudulent trust might be disregarded and the property seized under execution;
That the action, consequently, could not be maintained as one in equity to have the trust deed declared fraudulent and void; that it might, however, be maintained as one in equity to establish the mortgage as an equitable lien against the trust fund and to compel payment of the same by the trustees;
That the mortgage not having been given'by the trustees who held the legal title to the trust property, the aid of a court of equity was required to establish the mortgage as a lien upon the trust fund;
That as foreign executors the plaintiffs could not sue in the State of New York, and that the action was not brought by them by virtue of the foreign letters testamentary, but by virtue of their ownership of the debt, the same as if they had as executors or trustees loaned money and were suing to enforce the security and not as though they were executors or administrators suing in their representative capacity for the estate.
How far facts, showing the course of title, are necessary in alleging ownership, considered.
Appeal by the defendants, William Jay and another, as substituted trustees for Anna Benkard Hunt under the deed of trust of the 31st day of July, 1872, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day of March, 1905, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the said defendants’ demurrer to the plaintiff’s amended complaint.
The plaintiff alleges that on the 31st day of July, 1872, the defendant Anna Benkard Hunt, then Anna Benkard, in contemplation of marriage with one Percy Hunt, an alien subject or citizen of Great Britain, made and executed an agreement in writing with three trustees, residents of the State of New York, wherein and whereby for a valuable consideration she bargained, sold, assigned, transferred and set over unto them and to their successors and assigns forever certain real estate situate in the city of New York, being all of the real estate owned by her, together with the rents, issues and profits thereof and certain personal property mentioned in a schedule thereto annexed and all the personal property owned
p. 460
by lier, excepting furniture, wearing apparel, jewelry and personal ornaments, with the appurtenances, to have and to hold upon trust, to sell and reinvest the proceeds, and to hold and manage, collect and receive the interest, income and profits and to pay and apply' the net income therefrom, to her own use during her life, and from time to time to pay her such part of the principal of the proceeds, as they should deem proper, “ and upon and after ” ' her death to-pay and divide the said real and personal estate, or the proceeds, thereof, to and among such person or persons or bodies corporate, and in such relative shares, estates, or proportions, as she, the said party of the first part, shall, by her last will and testament or instrument in writing in the nature of a last will and testament, designate, and appoint, and in default of any lawful designation or áppointment by the said party of the first part, then to pay and divide the said real and personal estate or the proceeds thereof among such person or persons as under the laws of the .State of New York shall then be the heirs at law of the said party of the first part, and in the same estates, shares and proportions such heirs at law.would be entitled thereto if the same were all real estate situate in the State of New York, and the said party of the first part had died intestate seized and possessed thereof in fee simple and not married,” and upon the further trust to improve the real estate and partition the same with co-owners, as therein directed, with power to-them or the survivor of them to appoint their successors in-the event of death,, resignation or incapacity, covenanting on her part and on the part of those deriving any interest thereunder in the usual manner for further conveyances, transfers and assurances “for the better or more effectually vesting and confirming the premises hereby ■intended to be granted in and to the said parties of the second part, their successors and assigns, for the purposes above mentioned as-by the said parties of the second part, their successors or assigns, shall be reasonably’ devised or required ; ” that the instrument, contained a provision by which the trustees accepted the trust and covenanted forthwith to perform the same, each to be liable only for liis own acts; that the declaration of trust was duly acknowledged on that day and the trustees- in fact accepted the trust and took possession of the property; that on the 13th day of November, 1879, the original trustees resigned, having previously
p. 461
.advanced to said Anna Benkard Hunt tlie sum of $50,000 of the principal of the trust fund, and one Alonzo C. Monson and the appellant William Jay were duly suhstitntedx as trustees in their place and stead, and on the 6th day of January, 1.880, the original trustees transferred and assigned to them real and personal property belonging to the estate upwards of $225,000, and they accepted and entered upon the performance of their duties as substituted trustees; that on the 18th day of November, 1879, said Anna Benkard Hunt entered into an agreement with said substituted trustees by which she purported to exercise the power of appointment reserved to her in said instrument designated a “deed of settlement,” reciting the execution ef said deed of settlement and some of the terms and conditions thereof; that the original trustees desired to and were about to be relieved of their duties as trustees and were to be superseded by said Monson and Jay, who were to be appointed by the retiring trustees ; that the retiring trustees had exercised their discretion by making said advancement to the settlor upon condition, however, that she then exercise the power of appointment reserved to her and designate and appoint by deed under seal the persons to whom the estate should be paid over, distributed and divided at her death, which she had determined to do, provided that in consideration of the premises and of said advancement she thereby designated and appointed that the trustees or their successors in office at the time •of her death should hold the trust estate upon the same terms and •conditions as in the deed of trust provided and after paying the necessary costs, charges and expenses of the care and management of the estate out of the rents, issues and profits thereof should pay the balance of ^said rents, income and profits to her husband during the term of his natural life, and upon his death should assign, transfer, convey and set over the real and personal estate “ unto such children of the party of the first part as shall then be living and to the issue of such of them as shall have died in equal shares per stirpes and not per capita .absolutely and forever,” reserving to her, however, the right to vary that disposition by last will and testament or an instrument in the nature thereof by directing that a certain part of the annual income shall be paid to her children during the life of her husband, and that the estate upon her husband’s death should be set over untó one or more of her children or their
p. 462
issue, and in the event of the death of all her children without issue in the lifetime of her husband or of there being no. child or children or issue of a child or children living at the time of her death then she reserved to herself the absolute right, of otherwise disposing of the trust estate by last will and testament or instrument in the nature thereof; that this instrument was also duly acknowledged ; that the appellant William Jay has ever since his said ' appointment continued to act as a trustee, and on the- 28th day of May, 1890, in an action in the Supreme Court charged himself as sole acting trustee with the sum of $229,665.80 in cash and securities consisting almost wholly of bonds secured by .first mortgages in the city of- New York; that the resignation of said Monson as' trustee was accepted, pursuant to a decree in said last-mentioned action and he thereupon assigned and conveyed the trust property to the appellant Jay as. trustee; that on the 26th day of June, 1890, the appellant Winthrop likewise pursuant to said decree was substituted for said Monson and accepted the trust, and Jay as trustee thereupon assigned and transferred the trust property to Winthrop and himself as trustees; that the personal property held by them as such trustees is of the value of' at least $200,000; that - said Anna Benlcard Hunt has for a long time resided abroad and now resides with her children at the city of Paris, France; that on the 1st day of July, 1898, after the death of her husband said Anna Benkard Hunt obtained from one Thomas Charles Line, a resident of England, a loan of £9,200 sterling, and as security for the repayment thereof she and her three children who were of age, the fourth, the defendant Bn pert Herbert Hunt being a minor, executed a mortgage declared to be supplementary to said original deéd of settlement and to said agreement between her and the trtistees Jay and Monson on the 18tli day of November, 1879, to which quite full reference is made, reciting that the appellants were trustees at that time and tliat the children have agreed with their mother “ to take up money on a joint account” and for that purpose have requested her to release the power of appointment and to join in the mortgage of the trust estate as therein set forth and that the mortgagee has . agreed to lend to the mortgagors on joint account said sum of £9,200 sterling upon condition that repayment of principal and interest be secured as therein provided, and providing that in consideration of
p. 463
the receipt of said sum the mortgagors covenant to repay the principal and interest, and each, as to his separate interest, beneficial or otherwise, under said deed of settlement and agreement supplementary thereto granted, appointed, bargained, assigned, transferred and set over to the mortgagee, his heirs, executors, administrators or assigns all of the real and personal estate and all the trust estate comprised in' or then subject to said trusts or either of them to hold unto the use of the mortgagee, his heirs, executors, administrators and assigns, subject to the proviso for redemption thereinafter contained, and said indenture further witnessed that in pursuance of the agreements upon which said loan was made Mrs. Hunt, at the request and with the concurrence of her said adult children, released unto them and all other persons interested in the trust estate the further exercise of the power of appointment, “ to the end and intent that the said trust estate shall vest absolutely subject to the life interest of the said Anna Ben hard Hunt in ” her four children in equal shares, and said adult children mutually covenant to divide equally notwithstanding any appointment; that the mortgage contained a provision for redemption by repaying the indebtedness and interest during the month of September of the following year, and the mortgagors, in behalf of themselves, their heirs, executors and administrators, covenanted “ that they and all and every other person or persons whatsoever lawfully or equitably deriving any estate, right, title or interest of, in or to the hereinbefore granted premises bv, from, under or in trust for her, him or them, shall and will at any time or times hereafter maize, do and execute or cause or procure to be made, done or executed all and every such further and other lawful and reasonable acts, conveyances, assurances and transfers for the better or more effectually vesting and confirming the premises hereby intended to be granted in and to the mortgagee, his heirs, executors, administrators and assigns for the purposes above mentioned, as by the parties requiring the same shall be reasonably devised or required,” and it was further declared that the agreement for the loan was made in England and " that the mortgage should be construed according to the English law; that on the 1st day of January, 1899, the mortgage and the indebtedness secured thereby and the securities mentioned therein were dul y assigned by the mortgagee to Cartmell Harrison for value, who
p. 464
on the 4th day of January, 1899, and on the 5tli day of June, 1899, respectively, duly assigned the same to Thomas Connock Elliott .as security for a loan of £6,000 and "£8,000 respectively, together with all the rights of the assignor; that no part of the loan secured "by the -original mortgage or of the loans secured by the assignment thereof has been paid.; that said Elliott died on the 1.3th day o'f January, 1902, leaving a last will and testament, naming the plaintiffs as executors and trustees, and devised and bequeathed the residuum -of his estate to them in trust; that the will was' duly admitted to probate on the 20th -day of February, 1902, in the Principal Probate Registry of His Majesty’s High Court of Justice in England, having jurisdiction thereof, and administration on the estate was duly granted -to the plaintiffs; that the plaintiffs have duly accepted the trusts -created by -the will, and .that their claim in this action forms part -of -the trust created by the will,- -and that by virtue of -the will and the trust provisions -thereof the plaintiffs became the owners of the claim against the defendants set forth in; the complaint and -of the securities accompanying the same and forming part thereof therein mentioned, and -as such trustees the plaintiffs likewise -hold and own the'judgment thereinafter-set forth under the trust -provisions -of -said will; that thereafter the plaintiffs as such executors brought -an action in the High Court of Justice, King’s Bench Division, of England, a court of general jurisdiction, against the) mortgagors, -except one of the children who had died in the meantime, -for the recovery of the money loaned and secured to be paid by the mortgage; that the defendants duly appeared in the action and plaintiffs recovered a judgment against them on the 27th day of October, 1903, for the sum of £11,373 10s. and £363 6s. 9d. costs taxed on the 18'th day' of December, 1903, no part of which has been paid; that there remains due and owing on , account -of said loan the amount -of -said judgment and interest thereon; that the defendants -sued individually all reside in Paris and have no intention of coming to the Hnited States; that none of the mortgagors have property in England upon which execution could be levied and that the, plaintiffs have-no remedy except this action in equity against the trustees .and -the trust estate held by them in this State, and that' the defendants .sued individually have no means other than said -trust estate with which to pay the same,
p. 465
have admitted their inability to pay arid have urged the trustees to make payment out of the principal of the trust estate, but that the latter refuse so to do. The complaint then contains an allegation that the trust deed or settlement is void as to personal property as against all of the creditors of said Anna Benkard Hunt, including the plaintiffs, because of the fact that it was made by her for her own benefit and that she reserved an advantage out of the personal property transferred to the trustees and that it was and is fraudulent and void both as to real and personal property as against the plaintiffs as her creditors by reason of the fact that it was a voluntary con veyance of all of her property for her own benefit. Judgment is then demanded, first, that the trust deed be declared void so far as it affects the claim of the plaintiffs in this action; second, that the mortgage security held by the plaintiffs be impressed upon and made a lien upon the trust funds and property in the hands of the defendant trustees under the deed of trust “ to the extent of the amount recovered by said plaintiffs in the Court of King’s Bench, High Court of Justice of England, aforesaid, and the interest, and the said defendant trustees be directed to pay and discharge the same out of any of the trust property in said trust in their hands, and to that end that the said defendant trustees, or their successors in interest, may be required to make full accounting as such trustees of all property held under said trust and of the rents, issries or profits thereof; ” third, that a receiver be appointed pendente lite ; fourth, that the amount of any judgment recovered by the plaintiffs herein against the defendants be declared a lien upon real property the same as if said deed or settlement had never been made ; fifth, that the trustees be enjoined from paying out interest or profits until the further order of the court, and, sixth, for other and further relief. Pending the action the plaintiff Percy Elliott Bateman, one of the trustees, died, and by an order- the action was continued in the name of the survivor.
Flamen B. Candler, for the appellants.
S. B. Livingston, for the respondent.
It is contended by the appellants that it is essential to the maintenance of this action that the plaintiffs should have first recovered
p. 466
judgment upon their claim in the courts of this State and have issued, execution thereon and that the same were returned wholly or in part unsatisfied, and Dittmar v. Gould ( 60 App. Div. 94 ; 69 id. 615) and kindred cases are cited as authority therefor. The learned judge* at Special Term attempted to distinguish Dittmar v. Gould upon the ground that therein there 'was no allegation of fraud while here* there is, and that, in his opinion, equity has inherent jurisdiction of.' an action by a general creditor to reach equitable assets upon which, neither an attachment nor an execution could be levied, and that, spch jurisdiction is neither limited nor controlled by the provisions-of the Code of Civil Procedure (§§ 1871-1879). It is unnecessary to discuss the proposition, which received able and exhaustive consideration in Dittmar s. Gould, whether in any case a court of equity has jurisdiction before judgment in execution to entertain an action by a general creditor to reach equitable assets upon the-ground of a fraudulent transfer, for its decision is not essential to a- . determination of this appeal and the views of the members, of the court might not be in accord thereon. The facts alleged do not-show either actual or constructive fraud. It does not appear that, the settlor at the time she made the' deed of settlement had any creditors or contemplated incurring liability; and neither the plaintiffs nor their assignors became her creditors until the expiration of thirty years thereafter. The deed was made by an American citizen in contemplation of marriage with a foreigner, a subject of' Great Britain. The marriage was consummated and the'parties lived abroad, doubtless as she expected. Under the common law of England,-which would be controlling as to,her personal property if she-had not disposed of it in this or some other manner at that time, it-would have become the property of the husband. Having a private-fortune she desired to preserve it as against her husband and against, the foreign law for her own benefit during life, for the benefit of her husband thereafter during his life and with the principal over' to her issue. This was not forbidden by law and the object was commendable. The facts alleged, therefore, do not render the trust deed invalid. ( Wood s. Jackson, 8 Wend. 10 -33; Beardsley v. Hotchkiss, 30 Hun, 605 ; S. C., 96 N. Y. 201 ; Johnston v. Spicer, 107 id. 185-191; Borland v. Welch, 162 id. 104; Matter of Miller, 77 App. Div. 473 .)
p. 467
Manifestly in no view of the casé could the declaration of trust be invalid as to her issue in whom, the remainder was contingently vested upon their birth and became vested absolutely upon the. exercise of the power of appointment subject only to her life estate — the husband having died — and possession being postponed until her death. Nor was it void because she reserved an interest for her own benefit during life. It was not a passive trust within the provisions of the statute in force at the time (R. S. pt. 2, chap. 7, tit. 2,. § 1), but rather an active trust, founded on a good consideration, and the reservation of an interest for herself was only incidental and partial. (Curtis v. Leavitt, 15 N. Y. 9 ,114,123,147,149,176,204, 295 ; Delaney v. Valentine, 154 id. 692-701; Rome Exchange Bank v. Eames, 4 Abb. Ct. App. Dec. 83 .) Her beneficial interest might be reached in equity and appropriated to the payment of the claims of her judgment creditors, but it could not be set aside as either fraudulent or void. It was assignable absolutely or as security. (Schenck v. Barnes, 156 N. Y. 316 ; Raymond v. Harris, 84 App. Div. 546 .). Moreover, if the trust deed were fraudulent and void as alleged, then as to the personal property, which is all the estate now consists of, the. trust deed could be disregarded and the property could be attached oían execution levied thereon the same as property fraudulently transferred by a bill of sale. In that view of the case there was no necessity of appealing to equity, and as jurisdiction could be obtained by attachment there was no possible excuse for resorting to equity.. The allegations that the deed was fraudulently made, not being supported by the facts alleged, must be regarded as legal conclusions, not warranted by the facts and, therefore, not admitted by the demurrer. (Talcott v. City of Buffalo, 125 N. Y. 280 , 284; Greeff v. Equitable Life Assurance Society, 160 id. 19, 29; Kittinger v. Buffalo Traction Co., Id. 377, 387.)
I am of opinion that the action may be maintained upon the theory that the plaintiffs had a lien upon the trust property for the repayment of the loan and that they are entitled to have their .liens declared against the trustees and the securities in their possession,1 and to have the trustees directed to pay the same, as the beneficiaries of the trust all appear satisfied should be done. The facts concerning the loan and the execution of the mortgage are all pleaded, and they clearly show that an equitable lien was given upon all of these-
p. 468
trust funds so far as the mortgagors could give the same. The mortgage-represented every interest except-the interest of one of the children, who was then an infant. Upon the execution of the deed of appointment and the relinquishment of the right to further exercise the power of appointment, the interests of the children, which were theretofore contingent, became vested subject only to the life estate of their mother, the legal title, however, being in the trustees. The interest, therefore, of the mother and other children in these trust funds was subject to the lien of the mortgage, payment of which may be enforced against their interests. (Raymond v. Harris, 84 App. Div. 546 ; R. S. pt. 2, chap; 1, tit. 2, §§ 11, 13, 28, 33, 35.) There are conflicting allegations in the complaint, in that the existence of the lien in favor of the plaintiff is quite fully and at length alleged, and then at the close it is alleged that the trust deed was fraudulent and void; and there áre inconsistent conflicting demands for relief, in that it is prayed that the trust deed be set aside as fraudulent and void, and it is also prayed that the plaintiffs’ lien be established against the trust funds, and that the trustees be decreed to pay the claim therefrom. There being no facts alleged to warrant relief upon the ground of fraud, and there being facts alleged to warrant the equitable relief demanded, I am of opinion that the complaint should be sustained upon the theory that it is a suit in equity to establish and enforce the lien ,of this equitable mortgage. It matters not that the action is not in form to foreclose a lien upon real estate, for it does not appear that any of the trust property consists of real-estate at the present time, or when the mortgage was executed. The mortgage does not appear to have been recorded, and it is, perhaps, too general in its description of the property to be recorded, or if recorded either as a mortgage on realty or by flling it as a chattel mortgage to afford - protection to the mortgagee as against innocent purchasers. Moreover, it was not given by the trustees who hold the legal title, and, therefore, the aid of a court of equity is required to establish it as a lien upon these -trust funds. As has been observed, the trust funds appear now to consist of personal property only. The trustees are under the direction of the court, and if the1 lien be established against the trust funds it will be competent for the court to give directions to the 'trustees concerning the payment thereof out of
p. 469
the interest against which the lien is established. The lien is valid as between the parties, and is enforcible in equity. This is not an action over on the judgment, recovered in the English court. The allegations of the complaint concerning the recovery of judgment should be construed as mere allegations of ownership of the claim by the plaintiffs; and that the amount of the liability has been conclusively established between the parties. It is doubtful whether the costs in the English judgment are recoverable in this action, as the lien only covers the money loaned and interest; but the extent of plaintiff’s right of recovery is not now before us for decision.
It is contended that the plaintiffs have no legal capacity to sue. According to the allegations of the complaint the plaintiffs do not sue here in their representative capacity as executors. Being foreign executors they could not sue as such in this State. The indebtedness for which the mortgage was security merged in the foreign judgment, which, aside from the costs, fixes the amount of the lien, for the collateral followed the debt (3 Pom. Eq. Juris. [3d ed.l § 1210) and established ownership in them as executors. The action is brought, therefore, not by virtue of the foreign letters, but by virtue of this ownership of the debt the same as if they had as execntoi’s or trustees loaned the money and were suing to enforce the security, and not like administrators or executors suing in their representative capacity for the estate. (Bonilla v. Mestre, 34 Hun, 551 ; Matter of Mc Cabe, 84 App. Div. 145 ; affd., 177 N. Y. 584 . See, also, Maas v. German Savings Bank, 73 App. Div. 524 , 527; affd., 176 N. Y. 377 ; Mahon v. Ongley Electric Co., 156 id. 196 ; Toronto General Trust Co. v. C., B. & Q. R. R. Co., 123 id. 37.)
The learned counsel for the appellants further contends that the allegations of the complaint are insufficient to show ownership in the plaintiffs as trustees, and urges that' the provisions of the will should have been set forth. It is alleged that the mortgage and the indebtedness were assigned to their testator; that after his death they as his executors recovered a judgment against the mortgagors establishing the liability and extent thereof; that by virtue of the provisions of the will this security,.claim and judgment became part of the residuary estate, which passed to them as trustees, and that the claim, judgment and mortgage are now owned by them as
p. 470
trustees. We are of opinion that these allegations are sufficient. In alleging the ownership of personal property, chattels or dioses in action it is not necessary to allege. the facts showing the source of title further than has been done in the case at bar.
It follows, therefore, that the judgment should be affirmed, with costs.
O’Brien, P. J., and Hatch, J., concurred; Patterson, J., concurred in result.
Judgment affirmed, with costs.
Cases cited
- Beardsley v. Hotchkiss 96 N. Y. 201 p. 466
- Curtis, Graham & Blatchford v. Leavitt 15 N. Y. 9 at 114,123,147,149,176,204, 295 p. 467
- Schenck v. Barnes 156 N. Y. 316 p. 467
- Talcott v. City of Buffalo 125 N. Y. 280 at 284 p. 467
- People ex rel. New York Central & Hudson River Railroad v. Miller 177 N. Y. 584 p. 469
- Maas v. German Savings Bank 73 App. Div. 524 at 527 p. 469
- Maas v. German Savings Bank 176 N. Y. 377 p. 469