Olmstead v. Dodd

convey, and transfer the whole residue of said property remaining, after paying thereout the funeral and testamentary expenses” of said James E. Dodd, to such of his children, or their descendants, as he should, by his last will and testament, appoint, and, in default of such appointment, to his three daughters, of whom plaintiff was one.

James E. Dodd died November 18, 1865, without having executed the power of appointment reserved and contained in said deed of trust. Thereafter there was no longer a subsisting active trust, and plaintiff became entitled immediately to one-third of the residue of the property conveyed under said trust deed. Gilmore v. Ham, 142 N. Y. I, 10, 36 N. E. 826 , 40 Am. St. Rep. 554 . It was then the duty of Edward Dodd to turn over the corpus of the trust fund to plaintiff and her sisters, and, upon his failure to do so, plaintiff could at once have maintained an action against him to compel such transfer and for an accounting. She failed to do this, and more than 20 years afterward, in the year 1908, Edward Dodd died, leaving a last will and testament, which named the defendant as the executor thereof. The said will was proved at a Surrogate’s Court in Suffolk county, June 1, 1908, and letters testamentary thereunder were issued to defendant.

This action is brought to compel an accounting of the acts of defendant’s testator relative to said trust estate. Plaintiff contends that it is one to procure a judgment other than for a sum of money on the ground of fraud, in a case, which on the 31st day of December, 1846, was cognizable by the Court of Chancery, and that in such case the statute did not begin to run until the discovery of the facts constituting the fraud. Code Civ. Proc. § 382, subd. 5. But the complaint alleges .no fraud upon the part of defendant’s testator. It alleges no representations on his part, or any conduct, calculated to or which in fact did influence the execution and delivery to him of the trust deed, or which influenced and controlled the acts of plaintiff to her hurt. Neither is this a case where he feloniously acquired possession of the property, and in this respect it is distinguishable from Lightfoot v. Davis, 198 N. Y. 261 , 91 N. E. 582 , 29 L. R. A. (N. S.) 119 , principally relied upon by appellant. He lawfully received the property as trustee. His breach of duty, arose when, upon the expiration of the trust term, he failed to turn over one-third of the property to the plaintiff. The complaint alleges that, subsequent to the death of James E. Dodd, the said Edward Dodd sold certain of the real property conveyed by said trust deed, and received the proceeds thereof, and failed to pay over the same, and that she did not discover the fact of such sale until 1907. But the trust deed expressly authorized him to sell such property, if, indeed, it did not require him to do so. It may be that the power of sale fell with the expiration of the trust term, at the death of James E- Dodd. It is not necessary for us to decide this question at the present time. If it survived, the proceeds of sale were substituted for the property sold; if it did not survive, it may be that this attempted sale was ineffective.

But plaintiff’s cause of action does not arise out of the sale, but out of her right to receive the property which was the subject of the sale, and this right accrued at her father’s death. There is no allega

tian in the complaint that plaintiff was ignorant of the existence of the trust deed, or of its contents, and, if so, she was chargeable with knowledge of her rights thereunder. But, if she had been thus ignorant, in the absence of allegations in the complaint that through fraudulent conduct of the said Edward Dodd such knowledge was withheld from her, her ignorance would not suspend the running of the statute. Wood v. Young, 141 N. Y. 211 , 36 N. E. 193 .

The judgment and orders appealed from should be affirmed, with costs. All .concur.