Kelly v. Pratt

C. Herring, whose death preceded hers by a few weeks (April 5, 1862). He had nominated her as executrix of his will, but she had not qualified as such executrix, nor was the will offered for probate until after her death. It was probated October 14, 1862, and testator’s brother, Thomas H. Herring, was appointed and duly qualified as administrator with the will annexed. Plaintiffs are the descendants of the surviving alien sisters of the intestate Honora V. Herring, and defendants are, with the exception of defendant Burchard, the persons now living, who, in regard to the property in suit, stand in the shoes of the deceased administrator with the will annexed (Thomas H. Herring), who died July 1, 1874. Prior to the death of William 0. Herring (the testator) there were assessed against him upon the realty in question for taxes for the-years 1861 and 1862 the amounts of $76.06 for the former and $65.90 for the latter year. These taxes were preferred debts payable out of personal property, if sufficient, in the hands of the administrator. R. S. 1131, § 172, formerly § 27; Matter of Babcock, 115 N. Y. 450 ; Sisters of St. Francis v. Mayor, 51 Hun, 355 ; affd., 112 N. Y. 677 ; People v. Commissioners of Taxes, 91 id. 593. These taxes were, however, suffered to remain unpaid until October, 1866, when the property was sold for nonpayment thereof and of some unpaid water rates, notwithstanding that during all this time there was personal property of the testator’s largely in excess of such amount in the hands of the administrator. On Kovember 2, 1868, or two years thereafter, Thomas H. Herring, the administrator, paid the city $233.67, and took in his own name an assignment of the tax lease of the premises for a thousand years. This transaction, it will be noted, took place two days after the expiration of the time within which the owner might redeem. Laws of 1843, chap. 230, art. 3, § 2. Numerous adjudications might be cited declaring and emphasizing the fixed purpose of our courts to prohibit personal dealings by a trustee with the trust property under his control, and it has been

invariably held that transactions of such a nature should be set aside for the obvious reason that where interest as an individual and - duty as a representative conflict sound public policy requires that all temptation to neglect duty should be removed. Fulton v. Whitney, 5 Hun, 16 ; 66 N. Y. 548 ; Bennett v. Austin, 81 id. 308; Mitchell v. Reed, 61 id. 123; Moore v. Moore, 5 id. 256; Lytle v. Beveridge, 58 id. 592; Case v. Carroll, 35 id. 385; Van Epps v. Van Epps, 9 Paige Ch. 238 ; Forbes v. Halsey, 26 N. Y. 53 ; Jewett v. Miller, 10 id. 402. At the time the tax lease, so improperly as we have seen procured, was obtained the title to the realty was in the State, to which it had escheated on the death of the intestate devisee, and unless previously released by the State it remained there until after the enactment of chapter 261, Laws of 1874, and chapter 38, Laws of 1875, by force of which statutes nonresident aliens became entitled to inherit in like manner as if they were then citizens of the United States. In Wainwright v. Low, 132 N. Y. 313 , it was held that these acts by their terms include within their effect the heirs of those who had died before, as well as after, their enactment. This being so, these nonresident alien sisters of Honora V. Herring, if living, and the proof is that they were then alive, became seized of the fee, unless the State meanwhile had divested itself thereof. All three of these sisters died, however, before the commencement of this action, and the plaintiffs now before the court are, as above stated, their descendants, claiming respectively such share as the ancestor in each case would, if living, be entitled to receive. . Defendants contend that the State long before the passage of the Alien Enabling Acts, supra, had released its title, and if this is so, it would, of course, defeat the plaintiffs’ claim. The Release Act, entitled “An act for the relief of the heirs-at-law of William 0. Herring, deceased,” and known as chapter 191, Laws of 1864, is'relied upon to establish this contention. This act is clearly a private and local act, and if valid its purpose must be expressed in its title (§16, art. III of Constitution). Ho reference is made in the title to the fact that its purpose was to dispose of lands

devised to Honora V. Herring, nor is there in the title any reference to the locality in which the property affected is situated. Ruger, Ch. J., says, in Johnston v. Spicer, 107 N. Y. 202 : “ The manifest intention of the constitutional provision was to require sufficient notice of the subject of proposed legislation of a private or local character, to be so expressed in the title, as to put not only interested parties, but, also, all persons concerned in the proposed legislation, upon their guard, and to inform all persons reading it, of the general purpose and scope of the act.” The absence from the title of the name of the person whose decease effected the forfeiture was clearly misleading, and by this omission the real object of the act is not described in the manner commanded by the organic law for the purpose of guarding against the evils and mischief which might otherwise arise. People v. Hills, 35 N. Y. 452 ; Coxe v. State, 144 id. 396; McCabe v. Kenny, . 52 Hun, 514 . Within the authority of numerous decisions this act must be held not to have been a valid disposition by the State of the property which escheated to it upon the death of Honora V. Herring, and any devise or conveyance made by persons claiming thereunder was void. This brings us to a consideration of the Statute of Limitations. Concerning this defense, the question arises whether the action falls within the limitations of section 97 of the old Code, followed by section 388 of the present Code of Civil Procedure, that a cause of action accrues when the wrong is committed, and is barred in ten years; or whether, on the other hand, the action falls only within the limitations of subdivision 6 of section 91 of the old Code, followed by subdivision 5 of section 382 of the present Code of Civil Procedure, providing that the cause of action does not accrue until the discovery of the fraud, and must be barred within six years after such discovery. This in turn depends upon the question whether the action of Thomas H. Herring in permitting the property of the testator to be sold for nonpayment of taxes and in taking an assignment of the tax lease was an actual fraud, or was a constructive fraud, or created a trust resulting to the heirs of the devisee and owner

of the property. The facts and circumstances of the case at bar clearly bring it, in regard to the time within which it must have been begun, within the provisions of subdivision 5 of section 382 of the Code of Civil Procedure. The evidence of the time of the discovery of the fraud by the plaintiffs is that their earliest knowledge upon the subject was derived some time in the year 1895, and this action was commenced April 22, 1897. The rule as stated in Higgins v. Crouse, 147 N. Y. 411 , is substantially that when facts are known from which the inference of fraud follows, the discovery would be presumed to have taken place when this knowledge of these facts was obtained, and the statute would then begin to run; that where no fact is known, and no circumstances occur to suggest inquiry, a party owes no duty or diligence to discover a fraud. Baker v. Lever, 67 N. Y. 304 ; Baker v. Spencer, 47 id. 562; Brown v. Post, 1 Hun, 303 ; Decker v. Decker, 108 N. Y. 128 ; Gates v. Andrews, 37 id. 657; Piper v. Hoard, 107 id: 67; Price v. Mulford, id. 303. Judgment against the defendants, including defendant Bur-chard, as executor, whom it is necessary to bring in in order that a full and complete remedy may be had. Settle decision and judgment upon notice.

Judgment accordingly.