text:
    Sarah Lang v. William Ropke.
    An express trust, suspending alienation during a minority, is not an absolute term of years, irrespective of life, but is determined by the death of the minor before he attains his age.
    When the trust is to continue during more than two minorities, the limitation is void, since it may suspend alienation beyond two of the lives upon which it depends.
    But it is certainly valid when it appears from the state of facts existing at the death of the testator, that it could not exceed a single minority.
    An estate by devise is not created by the publication of the will, but by the express words of the statute, the death of the testator is the time of its creation.
    In computing the period of suspense, the lives of annuitants are not to be added to a term of minority.
    When the will directs that a capital shall be set apart for the payment of the annuities, there must be a distinct capital for each annuity, and hence the suspense in such case cannot exceed a single life in addition to the term of minority.
    But a trust for the payment of an annuity, even when it is payable out of rents and profits, does not fall within Sub. 3, in § 55, in the article of trusts. That subdivision is confined to the cases in which the whole rents and profits are to be applied or paid over.
    An annuity given by a will is a pecuniary legacy, and the trust for its payment must be referred to Sub. 2, in § 55.
    It is not subject to the prohibition in § 63, and therefore imposes no restraint upon alienation. The annuitant may release to the persons entitled in remainder, or may unite with them in the conveyance of an absolute fee.
    The invalidity of a trust for accumulation does not affect independent provisions in the will. The only consequence is, that those for whose benefit the accumulation is directed to be made have an immediate right to the whole income.
    A power to sell lands and distribute the proceeds among those to whom the lands are devised is not one of the purposes for which an express trust may be created. The sale is for the benefit of devisees, not of legatees. •
    It is, however, no objection to the validity of a power in trust, that it-is granted for the same purpose for which an express trust is authorized.
    The R. Statutes have imposed no limitation whatever upon the creation of trusts, in the full sense of the term, and a valid trust may now be created for any and every purpose, for which it might have been created before the R. S. were adopted.
    The changes made by the R. S. are: 1. The entire abolition of passive trusts, and 2. A limitation of express trusts, i. e. of trusts which pass an estate as well as grant an authority.
    But these changes have neither abridged the real power of the owner of lands in the creation of trusts, nor the jurisdiction of equity in compelling their execution.
    On the contrary, when there is no illegal suspense of the power of alienation, the real intention of the party creating the trust will in all cases be carried into effect.
    When the trust is passive, the intention is executed by giving to the cestui qui trust a legal estate; when active, by construing-it as a power in trust, if it cannot take effect as an express trust.
    In the latter ease the powers and duties of the trustee and the rights and remedies of the beneficiary are exactly the same as in the case of an authorized express trust.
    When the trust is entire, and suspends unduly the power of alienation, it is wholly void, but its mere invalidity as an express trust never operates to deprive the beneficiary of the benefit intended.

      Held, that the trusts of the will, (except that for accumulation,) and the power of sale, given to the executors, were valid, and the power well executed by the surviving executor, and consequently that the defendant was entitled to judgment.
    (Before Duer & Campbell, J. J.)
    (January Term, 1852.)
    John Lang, of the city of New York, died on the 17th of March, 1836, having made and executed his will, dated 9th February, 1824, whereby, after bequeathing certain legacies to his wife and his mother-in-law, Mrs. Ustick, he disposed of the residue of his estate as follows :
    Item.—All the rest, residue and remainder of my estate, both real and personal, whatsoever and wheresoever situate, lying and being, I give, devise, and bequeath unto my beloved children, Hannah Gamble (wife of John M. Gamble of the United States Navy), Robert Ustick Lang, Mary Lang, John Lang, Jr., Sarah Lang,' Charles Lang, William Lang, and Edmund Lang, and to their "heirs, executors, administrators and assigns for ever, equally to be divided amongst them, share and share alike, subject, however, to the deductions, limitations, and provisions hereinafter contained and set forth, and to the annuities and legacies above bequeathed. Item.—Should any of my children die, leaving a child or children, him or her surviving, I will, order, and direct that such child or children shall, in each and every such case, stand in the place and stead of the parent so dying, and take the share or portion of my real and personal estate so given and intended for such parent, and I give, devise, and bequeath the same to him, her, or them, and to their heirs and assigns for ever accordingly. ***** Item.—I order and direct that all my estate, consisting of houses, lots, and premises, and making up my whole real estate (together with five-twelfths of the newspaper establishment aforesaid), be vested in my executors, or the survivors or survivor of them, until my youngest child living shall attain to the full age of twenty-one years, and that they, or the survivors or survivor of them, rent out the same from time to time, and at all times for the most moneys which can be obtained therefor (and that they continue the said newspaper establishment with my interest and portion therein if they shall deem it prudent, or sell the same if that -shall be deemed the most advantageous and desirable on account of my estate and those interested therein), and that they, or the survivors or survivor of them, pay or disburse for the maintenance, support, and education of my children, out of the neat proceeds of the rents, issues, and profits of my real estate, and of the neat proceeds of the interest, income, profits or dividends of my.personal estate when and as often as the wants and necessities of my said family shall require the same. Item.—All sums over and above what is so bequeathed and devised for the support of my said family as it shall or may accumulate, I direct my executors as aforesaid to invest in some productive stock or to be loaned out on bond' and mortgage, and to call in, change, or re-invest the same as the interest of my estate in their opinion may require. * * * Item.—For the purpose of facilitating a division of my estate amongst my children when the youngest living shall be of lawful age, I do hereby authorize and empower my executors or the survivors or survivor of them, to sell my real estate, or any part or parcel thereof, and to give deeds of conveyances to the purchaser or purchasers thereof in fee simple, saving the house which is given to my said wife, which can and may be sold also, but not during her lifetime. * * * The testator made and published a codicil to his will on the 29th July, 1831, appointing new executors in lieu of those appointed by his will. Under the power contained in the said will, Edward Harris, the surviving executor, so appointed on the third day of July, 1850, executed and delivered to Wilhelm Ropke, a conveyance of certain premises, of which the said John Lang died seized. .

      At the time of the death of the testator, there were living his widow, Sarah Lang, and seven children, namely : Hannah Gamble, Robert U. Lang, John Lang, Jun., Sarah Lang (now Spencer), Charles E. Lang, William Lang, and Edward Lang.
    All of these children, except Edward Lang, were of age at the time of the death of the testator. Edward Lang became of age in the month of October, 1837.
    Robert U. Lang died intestate. July 10th, 1837, leaving three children him surviving, viz : John Lang, since deceased, Sarah Lang, and Robert Lang. John Lang, Jr., died August 7th, 1836, intestate and without issue. Charles E. Lang died July 9th, 1848, intestate, and without issue. Sarah Lang, the widow of the testator, died in March, 1850.
    The estate of the testator consisted of some personal property, but chiefly of real estate, consisting of seven houses and lots in the city of New York, of unequal value, so that no one house and lot could be given to any one child as his equal share.
    At the time of the publication of the codicil to his will, two of the children above named, viz. William Lang and Edward Lang, were under the age of twenty-one years.
    The case was submitted for the opinion of the court without action, on the above facts, the plaintiffs contending that the devise and disposition of the real estate of the testator contained in the will was invalid,-and that she was entitled in fee to one undivided tenth part thereof, and the defendant contending that he is the sole owner of the said premises, by virtue of the conveyance executed by the executor of the said John Lang, the testator.

      Wm. Curtis Noyes & A. S. Garr, for the plaintiffs, made and argued the following points:
    I. The will of Mr. Lang suspended the absolute power of alienation of the real property for more than two lives in being at the creation of the estate : 1. It is suspended by the trusts of the will during the lives of the widow and Mrs. Ustick, and until the youngest child attained the age of twenty-one years. (1 R. S. p. 723, §§ 14, 15, 16; Hawley v. James, 16 Wend. 4 Kent Com. 271.) 2. This objection is not obviated by the power of sale given to the executors; as the direction to sell is not peremptory, and is besides of doubtful construction. 8. But if there was a peremptory direction to sell, still the same character is impressed upon the proceeds of the sale in the hands of the trustees, and the trusts would continue, and the result would not be different regarding the fund as personal property. (1 R. S. p. 77, § 1.) 4. The time of the “ creation of the estate” in this instance, is the publishing of the will. (16 Wend. 121, supr.; Ram on Wills, 6; Lewin on Perpetuities, 170 to 172— 442; 4 Kent’s Com. 283.)
    II. The trust for accumulation until the youngest child was twenty-one, was void; it being for the benefit of adults as well as minors. (1 R. S. 773, § 3, 4, 5; Boynton v. Hoyt, 1 Denio 53.)
    III. The power to the executors to sell the real estate was void, being evidently for the same purpose for which an express trust is authorized under § 55. (Wend. § 55 ; 1 R. S. 729, § 58 ; per Bronson, J., in Hawley v. James, 16 Wend. 174, 5.)

      Geo. Wood and Theodore Hinsdale, for the defendants, made and argued the following points :
    I. The sale of the premises in question by the executor under the power in the will to the defendant, is valid and operative, and the plaintiff has no right to them or any part thereof, as heir at law.
    II. The purpose for which the power was conferred upon the executors, was a lawful motive, namely, to facilitate the division of the estate.
    III. This power was not void, as being for the same purpose for which an express trust is authorized under 1 Rev. Stat. page 739, § 55. 1st. The object is to facilitate the division of the estate, personal being more readily divisible than real estate. 2d. Even if the dispositions in the will of the property, which is the subject of the power, were invalid, the power would be good, as it would facilitate the division among the heirs at law. 3d. A will may be void in some of its provisions, and good in others, when the parts can be separated. 4th. The sale under the power is not for' the purpose of carrying out the limitations merely, but for the purpose of division of the estate generally.
    IV. The disposal to the executors in trust for support and maintenance, is good, being expressly authorized by the said §55.
    V. There is no trust for accumulation for any period directed by the will, which is the case contemplated and prohibited in the § 37 of Rev. Stat. 726. * The will means by accumulation, merely the surplus of rents and profits beyond what is necessary for support and maintenance. There is no direction in the will that this surplus shall accumulate for any time. The executors are simply directed to invest it, a duty which the laws would impose upon them as trustees, without any testamentary direction. The interest resulting from such investment is not required to be accumulated either‘by law, or by the direction of the will.
    VI. If the direction for accumulation had been such as was prohibited by the Revised Statutes, it would be inoperative only pro tanto, without impairing the rest of the will. (1 Rev. Stat. 726, § 38.)
    VII. The trust created is not in violation of the rules of perpetuities prescribed in the Revised Statutes. Alienation is not suspended for more than two lives in being- at the creation of the estate, viz. the death of the testator. 1st. Such a construction shall be given, if it will admit of it, as will support the disposition. (Archibald v. Thomas, 3 Cow. 289, 6 Paige, 54.) 2d. A will, where no specific time is limited, is presumed to refer in its provisions to the testator’s death. 3d. The youngest child living, means the youngest living at the death of the testator, when the creation of the estate takes place. 4th. The inalienable trust lasts only till that youngest child attains the age of twenty-one, and not till the time when, if it should continue to live, it would attain the age of twenty-one. It therefore does not last beyond that life in being, and will not last so long if that child should survive twenty-one. 5th. The trust is not suspended by the lives of the widow, and Mrs. Ustick. It is not at all dependen) upon them. 6th. They take annuities which are alienable by them at any time. They are, therefore, persons in being who may join in disposing of the estate. 7th. In the Lorillard will, though the trusts were held void, annuities were sustained.
    VIII. The conveyance by the surviving executor is executed in due form, and in due exercise of the power to pass the estate.
   By the Court.

Duer, J.

It may be admitted that the necessary effect of the trust, which this will creates in relation to the rents and profits, was to suspend, during its continuance, the absolute power of alienation, but as the trust was to last no longer than until the youngest child of the testator should attain the age of twenty-one years, the suspense, which it involved, was far within the limits which the statute allows. A devise to trustees to receive and apply the rents and profits, during a minority, is not an absolute term of years, corresponding with the possible duration of the minority- but is determined by. the death of the minor before he- attains his age. This construction of such a limitation was adopted both by the chancellor, and the court of errors, in Hawley v. James (5 Paige, 463; 16 Wend. 60), and although i,t is not easy to be reconciled with the English decisions (Boraston’s case, 3 Rep. 19; Taylor v. Biddell, 2 Mod. 289; Stanley v. Stanley, 16 Vesey, 491), it must now be considered as the settled law of the state. Hence, when the trust is to continue during more than two minorities, the limitation is void, since the suspense' of alienation, which it creates, may exceed two of the lives upon which the trust depends ; but when limited to a single minority, it is plainly valid, since the suspense cannot possibly exceed the life of the minor, and by his attaining his age, may be determined at a much earlier period than his actual death. In contemplation of law, the suspense is fora shorter period than the continuance of a single life in being at the creation of the estate (1 Rev. Stat. § 15, p. 723). In the case before us, but one of the children of the testator was under age, at the time of the death of the testator ; and it seems to us that there is no exception from the rule which the Revised Statutes expressly declare, namely, that where an estate is created by devise, the death of the testator shall be deemed the time of its creation (1 R. S. § 41, p. 726). By thus referring to the statute, we are not to be understood as inti mating that such is not also the rule of the common law. It must be admitted that the language of some of the more recent text-writers (Ram on Wills, 6 ; Lewin oh Perpetuities, 170,442) seems to favor the position that an estate by devise is created by the publication of the will, but whether these writers are sustained by the cases to which they refer, is a different question, which we deem it unnecessary now to examine.

To the proposition, that in computing the period of suspense, the lives of the two annuitants are to be added to that of the minor, we cannot assent. The testator plainly intended that the estate of the trustees should cease, when his youngest child should attain his age, since he authorizes them, at that time, to sell the whole of his real estate, with the exception of the house and lot devised to his wife, and divide the proceeds among the children, reserving, however, a sufficient capital for the payment of the annuities. Supposing, therefore, the directions of the will to be followed, there could be no suspense of the power of alienation beyond the term of minority, except as to the capital set apart for the payment of the annuities ; and as it was the duty of the executors to set apart a distinct capital for each annuity, the suspense in each case, if it existed at all, was only during a single life, in addition to the term of minority. As the premises now in controversy could not have formed a part of the capital reserved for the annuities, they were freed from any suspense of the power of alienation, directly upon the expiration of the trust term. As soon as the youngest child attained his age, there were persons in being by whom an absolute fee in possession might have been conveyed.

We observe further, that the argument as to the effect of the annuities in suspending alienation, was founded upon an erroneous construction of those provisions, -which bear upon the question, in the article of “ uses and trusts.” It assumed that the direction to pay an annuity, which is charged upon lands, or the rents and profits of lands, creates an express trust under the third subdivision of sec. 55, and is therefore subject to the prohibitory clauses in sec. 60 and 63 ; but we are clearly of opinion, that this subdivision extends only to the cases in which the whole rents and profits, whatever may be their amount, are to-be paid over, or otherwise applied to the use of, the beneficiary, and not to those in which the sum to be raised and paid over, whether immediately or annually, is ascertained and defined. An annuity, given by a will, whatever may be the direction as to the mode of its payment, is a pecuniary legacy, and hence, when it is charged upon lands, it is only under the second subdivision of sec. 55 that a trust for its payment can be sustained. This question was very fully debated and considered in Hawley v. James, and it is manifest, from the terms of the decree, that the construction we have stated is that which the court of errors finally adopted (16 Wend. p.—).• The annuities, which in that case were sustained, by the express terms of the will, were to be paid by the trustees out of the rents and profits of the lands devised, and had they not been regarded as legacies, assignable in their nature, and therefore imposing no restraint upon the alienation of the lands, the court, instead of decreeing them to be paid, must have declared them to be void. That such must have been the result of a different construction was admitted by nearly all the judges and senators who delivered opinions. We therefore consider the law as settled, that the bequest of an annuity, to be paid by trustees, does not suspend the alienation of the lands upon which it is charged, even during the lifetime of the annuitant, since, by releasing to the persons entitled in remainder or reversion, he may extinguish the trust, or may unite with them and the trustees in conveying an absolute fee to a third person.

The direction, or, more correctly, the permission given to the executors to accumulate the surplus rents and profits during the trust, as the accumulation was for the benefit of adults, as well as of minors, it may be admitted, is void ; but we cannot admit that by this illegality the other provisions of the will are at all affected. The only consequence is, that the children were entitled to the whole income, not merely to such a proportion as the executors might have deemed sufficient for their maintenance and support. The doctrine that an express trust, with all its powers and incidents, is rendered void, by the invalidity of any one of several distinct and independent purposes, for which it is created, we rejoice to say, may now be considered as decisively and completely overruled. (Hone’s Executors v. Von Schaick, 20 Wend. § 564; Darling v. Rogers, 22 Wendall, 483; Irving v. De Kay, 9 Paige 521, 8.) Root v. Stuyvesant is an anomalous case, to be rejected and shunned, not to be followed; as an authority, it ought never to be quoted.

We are not certain that we rightly apprehend the meaning, or intended application, of the last objection to the validity of the defendant’s title, namely, that the power of sale vested in the executors was void, because it is given for the same purpose, for which an express trust is authorized, by the statute. The objection, it is probable, was suggested by some of the observations of Mr. Justice Bronson, in Hawley v. James, but those observations, as we understand them, only .mean that where an express trust, otherwise valid, is held to be void, as involving a perpetuity, it cannot be sustained as a power in trust under section 58 in the article of “ Uses and Trusts and we certainly agree with the learned judge, that, to such a case, the terms of that section do not at all apply. But if we have rightly construed, the provisions of the will, the case before us is not the case to which the observations of Mr. Justice Bronson above refer ; and hence the objection we are considering, so far as it rests upon those observations, has manifestly no application. Had we been constrained to adopt that construction of the will upon which the learned counsel for the plaintiff insisted, namely, that the express trust which the will creates embraced all the estate of the testator, was intended to last during the lives of the two annuitants, as well as during the minority of his youngest child, and during that period' rendered the whole property inalienable, we should probably not have hesitated to say that the power of sale given to the executors was annexed to and must fall with their estate ; but holding, as we do, that the trust term, as created by the will, involved no undue suspense of the power of alienation, and was therefore valid, we are unable to see that there are any grounds upon which the validity of a power of sale to be exercised, at the expiration of the term, or the legality of its exercise, by the surviving executor, can reasonably be questioned. .

It is probable, however, that the objection that the power to-sell was void, as given for the same purpose for which an express trust may be created, was meant to be understood, in a different sense, from that which we have supposed. The meaning may be that a power in trust can never be created for any purpose that may be effected by an express trust; that is, that a power to sell lands for the benefit of creditors or legatees, or for satisfying a charge, is absolutely void, unless the trustee is clothed with an estate, as well as an authority. It would be a sufficient reply to the objection thus stated, that the power to sell, as created by this will, is not given for any purpose which the statute enumerates. The proceeds of the lands when sold, are to be divided amongst those to whom the lands themselves are devised, and their distributive shares are not legacies, but belong to them as owners. It is for the benefit of devisees, not of legatees, that the sale is directed (Patten v. Randall, 1 Jac. & Walk. 189; Bentham v. Wilshire, 4 Mad. 44; Dominick v. Michael, 4 Sand. S. C. R. p. 374.)

The sole object of the power is to facilitate an equal division of the property-which it embraces; and to secure the proper execution of such a power, it is not at all necessary that any estate should be given to the trustee in the lands to be sold. This is no more necessary, where the power is created by a will, than where it is given by a court of justice to commissioners, in a suit for partition ; as it is essentially a power to make partition, it is only as power in trust that it could be granted or exercised.

But we must not limit ourselves to a reply that while it proves the objection to be irrelevant, seems to admit that, if relevant, it would be valid. No such admission is intended to be made, or can justly be made. The position that a power in trust cannot be granted for any purpose for which an express trust is authorized, we are convinced, is groundless, as well as novel. When a trust is created for the payment of legacies, or the satisfaction of a charge, by a sale or mortgage, it rests entirely in the discretion of the testator. whether he will confer an estate, or a mere authority. That he possessed this discretion, at common law, it is impossible to doubt, nor have we discovered a single word in the revised statutes from which the intent of the legislature, to take it away or abridge its exercise, can be inferred. On the contrary, as the article Of Powers,” has imposed no restriction whatever on the creation of powers in trust, it seems a necessary consequence that a trustee may be authorized to perform any act “ in relation to lands or the creation of estates therein, or charges thereon, which the owner granting the power might himself lawfully perform” (1 R. S. p. 732, sec. 74).

We have said all, that the decision of this controversy requires to be said, but there are some further observations in relation to “ Trusts and Powers,” as modified by the revised statutes, which the points involved in this case have suggested, and which, for many reasons, we deem it expedient to add. It is frequently asserted, or intimated, and seems indeed to be generally thought, that the new statutory provisions have prescribed limits to the creation of trusts much narrower than the exigences of society demand, and which must therefore operate, in numerous cases, to deprive meritorious trusts of the security and protection to which, by law, they were formerly entitled ; yet this is so far from being true, that if the term trust be understood, in its general and appropriate sense, as applying to every case, in which a power of control or disposition is given to one person to be exercised for the benefit of another, and if the limitation is so framed as not to involve an undue suspense of alienation, it is certain, that a valid trust may now be created for any and every purpose, for which a trust might have been created, before the revised statutes were adopted. The attempt to define and limit active trusts by an enumeration of all the purposes for which they may be created, would be extravagant and futile; and' so conscious were the revisers of this, that in their notes to the chapter “ Of Real Property,” they expressly said that such trusts from their nature cannot be limited (3d R. S. 2d ed. p. 590). No such limitation therefore could have been intended by them as the effect of the regulations which they proposed.

It is not at all necessary, however, to the preservation of trusts, that a naked title should be vested in one person, when the actual possession, the reception of the rents and profits, and the entire power of disposition and control, are given to another. Nor, in many cases, is it requisite to give to the trustee any estate in the lands, to enable him to execute the powers, or fulfil the duties, which the trust confers or enjoins. Hence the revised statutes have wholly abolished passive trusts, and by enumerating the purposes for which alone an express trust may be created, have limited the cases in which an estate may be given to the trustee, as well as an authority. The supposition, however, that by these changes the power of the owner in the disposition of his property is really abridged, or his intentions in favor of those who may be the object of his bounty, rendered liable to be defeated, is a serious error, which it is time should be banished from the minds of the profession, and be no longer implied in the opinions of judges. The trust, where lands are granted or devised in trust, is, in all cases, either nominal and passive, or real and active. Where it is passive, as where lands are granted or devised to A. to the use of B., or in trust to permit B. to take the possession and receive the rents and profits, although the trust is wholly void, yet by force of sec. 49, in the article of “Uses and Trusts” (1 R. S. p. 722), the intent of the person creating it is fully executed, by giving to the beneficiary a legal estate, of the same quality and duration, as his beneficial interest. When the trust, although not created for a purpose enumerated in the definition of express trusts, is real and active, as where the trustee is empowered to convey the lands upon certain conditions to certain persons, the grant or devise, as passing an estate, is indeed void, but the trust in its substance and reality is fully preserved, and its execution may be enforced, by the same means and with the same certainty} as had a title to the lands been vested in the trustee, as well as a power of disposition. The statute then executes the intention of the grantor or testator, by declaring the trust to be valid, as a power in trust (sec. 58, p. 723), and by this construction the powers and duties of the trustee, and the right and remedies of the cestui que trust, are precisely the same as they would have been had the revised statutes never been passed. The conclusion is, that neither the power of the owner of lands in the creation of trusts, nor the jurisdiction of equity in compelling their execution, although somewhat changed in form, have been in reality abridged ; and it is therefore an unnecessary alarm that the statutory provisions are said to have excited. It is true where a trust, whether an express trust or merely a power, is so framed as to suspend alienation for a longer period than the statute allows, the entire limitation, as in Coster v. Lorillard, and in Hawley v. James, is justly held to be illegal and void, but we state, with entire confidence, that the invalidity of an express trust upon the sole ground that it cannot be referred to any class of those which the statute has alone authorized, can never operate to deprive the objects of the trust of the benefits intended.

In conformity with the views we have expressed, judgment must be entered for the defendant. ' •


source: Caselaw Access Project

author: Sandford, J.

license: Public Domain

text:
    Henry T. Megary, Administrator, &c., of Daniel M. Hogan, deceased, Respondent, v. Jacob G. Funtis and Wife, Appellants.
    The widow of an intestate, in an action brought by the administrator for the recovery of a debt due to the estate, is a competent witness. The suit is not for her “ immediate benefit ”—within the meaning of those words as used in the code.
    A payment upon a bond or mortgage, made in good faith, to a son of the mortgagee, who is an attorney at law, and is in possession of the securities, is valid in law.
    The debtor, in such cases, has a right to believe that the son has the requisite authority from his father.
    But this presumption of authority ceases upon the death of the father, so that payments made to the son after that time, unless there is positive evidence of his right to receive them, are wholly void.
    Judgment at special term modified accordingly.
    (Before Sandfoed & Campbell, J. J.)
    Jan. 12;
    Feb. 14, 1852.
    This was an action for the foreclosure of a mortgage given to the intestate, and for a sale of the mortgaged premises. The defendants were not the mortgagors, but had purchased and were the owners of the equity of redemption. The principal of the mortgage debt was not due, but the ground of the relief sought was, that one year’s interest, amounting to $98, was due and unpaid.
    The defence was, that the mortgage debt, both principal and interest, was fully satisfied by different payments made by the defendant, Funtis, to one Thomas R. Hogan, a son of the intestate, and which he (the son) had full authority to receive.
    The cause was brought to a hearing before the chief justice at a special term, in June, 1851. A number of witnesses on both sides were sworn and examined, and among other witnesses, Jane E. Hogan, the widow of the intestate, was introduced on the part of the plaintiff, and was objected to, on the ground that she had an immediate interest in the suit. The objection was overruled, and the counsel for the defendant excepted to the decision.
    After argument the chief justice held that the defence was not established, and in July he made the usual decree for a sale of the mortgagéd premises.
    The following are the facts found by him upon the evidence, and his conclusions of law thereon :
    •In stating the facts of the case as they appeared at -the trial at the special term, I have not deemed it safe to rely on the evidence of the witness, T. R. Hogan, any further than his testimony may have been corroborated by other witnesses, or by the circumstances otherwise proved. His connexion with the case, and his conduct relative to it, show such a want of integrity, and the contradictions to various material parts of his evidence were so strong as to satisfy me that I could not safely rely on his sole assertion of any fact.
    With this explanation, I consider the following facts to have been established on the trial, as far as it is material to state them.
    T. R. Hogan was an attorney at law, and was employed by his father, the intestate, to draw the bond and mortgage in question, given by Cyphers. At the time of the execution of the papers, Cyphers was told by the mortgagee that he might at any time pay to his .son any sum of money on the bond that he might wish. The son deposited the mortgage in the register’s office, and delivered the bond to his father.
    D. R. Hogan died on the 2d day of December, 1849. Shortly before his death, and while he was unable to do any business, his wife, without his knowledge, delivered the bond and mortgage to his son, T. R. Hogan, with instructions to get the year’s interest then due. The son applied to Funtis, the defendant (to whom, the mortgaged premises had in the meantime been transferred by Cyphers), and received from him the sum of two hundred and fifty dollars, which he endorsed on the bond as so much of the principal, and signed the name of his father to the endorsement. He paid one year’s interest to Mrs. Hogan, and retained the balance. He returned the mortgage to Mrs. Hogan, but kept the bond in his possession.
    After the death of D. M. Hogan, and on the 4th day of January, 1850, the son received from Funtis the sum of $663, and endorsed it on the bond, signing the endorsement in his own name ; and subsequently he received from the defendant various small sums, for which no receipts or vouchers appear to have been given, which, together with a note for two hundred dollars, alleged to have been made by the defendant, are endorsed on the bond by Thomas R. Hogan, as in full of the same, and it was delivered up by him to the defendant.
    On the trial, the bond was produced by the defendant, can-celled by the tearing off of the obligor’s name. The mortgage was produced by the plaintiff uncancelled, and apparently unsatisfied.
    It did not appear that the death of D. M. Hogan was known to the defendant, at the time the bond was delivered up to him, or that he ever personally knew him, or that he had ever heard of the circumstances under which the bond and mortgage were executed by Cyphers, or of any verbal authority given by Daniel M. Hogan to his son, to receive any payment on the bond.
    The plaintiff took out letters of administration on the estate of D. M. Hogan, on the 20th day of December, 1849.
    On this state of facts my conclusion of law was, that the payments on the bond, made by the defendant under the circumstances, though made in good faith, were not valid, and could not be set up by him in discharge of the mortgage debt, or of the interest due on the 21st day of September, 1850.
    The cause was now heard upon an appeal by the defendants from the judgment at special term.

      C. Haring, for defendants.

      R. E. Mount, for plaintiff.
   By the Court.

Sandford, J.

The widow of the intestate was a competent witness for the plaintiff, under the code of procedure. The suit was not prosecuted for her immediate benefit within the principle of Davies v. Cram, decided in this court, in December, 1850. The subject was fully examined in that case, and we see no reason to doubt that it was disposed of correctly.

The court below was indisputably right in rejecting the payments made to T. R. Hogan, after the death of the intestate. Whatever authority he had from the intestate, whether direct or inferential, had then ceased.

As to the payment of two hundred and fifty dollars, made in November, 1849, the case is very different. In the execution of the bond and mortgage, and making the loan, T. R. Hogan acted as the agent of his father. The mortgagor applied to him for the loan, and he paid over the money in behalf of his father. When the securities were executed, the intestate told the mortgagor, “ to pay the same ” to T. R. Hogan. And when the payment of two hundred and fifty dollars was made, the bond was in his possession, and he endorsed on it a receipt for that sum. It is true, there is testimony, that he had the posses-. sion of the bond wrongfully at that time, but if such were the fact, it did not affect the defendant, who knew nothing of the wrong, and who doubtless did know of his connexion with the loan originally. Again, it is said there was no evidence that the defendant knew of the intestate’s direction to the mortgagor, to pay the money to T. R. Hogan. We think it is fairly inferable, from the circumstances, that he did know it, and if he did not, he certainly, as the principal debtor, succeeding to the mortgagor’s liability, is entitled to the benefit of that direction in support of a payment made in good faith. He is not to be deprived of the benefit of a fact, which goes to sanction the payment, merely because he was at that time ignorant of that fact.

Without reference to the authority thus given to T. R. Hogan, the possession of the securities at the time of the payment, coupled with his connexion with their inception, his office as an attorney at law, and his relationship to the intestate, was quite sufficient to warrant the defendant in making the payment to him in November, 1849. The law on this subject was fully discussed in Williams v. Walker, 2 Sand. Ch. R. 325, and we adopt the conclusion, there enforced, as to the extent of the authority to be inferred from an agent’s or attorney’s possession of the securities. According to that conclusion, the payment in November, 1849, was valid, irrespective of the original direction to the mortgagor, and with that fact added, it seems to us that there is no room for doubt.

With the principal then paid, the defendants paid the interest which had accrued on the same, from September 21,1849. The year’s interest, due on that day, had been paid, as is admitted in the complaint, and as was proved. There was therefore unpaid, eleven hundred and fifty dollars, with interest, from September 21, 1849. The judgment entered must be modified so as to direct the collection of that amount with the plaintiff’s costs in the court below. Neither party is to have costs as against the other on the appeal.


author: Bosworth, J.

text:
    Maria A. Paff v. Franklin S. Kinney.
    The plaintiff, an executrix, and the defendant, an executor of the same estate, had a final accounting before the surrogate of New York. He made a decree thereon, ascertaining and declaring the amount of assets in their hands, the whole amount due, and the sum payable to each creditor out of the assets, that the assets be placed in defendant’s hands, and that he personally pay the sum payable to each creditor.

      Held, that the liability of the defendant thereupon became personal, and the moneys his individual property, unless some special equity be shown to follow and reach the fund.
    All the creditors, except one to whom $1596 51 was decreed to he paid, having been paid their proportion in full, and the latter having been equitably satisfied, also his claim from some source not stated, but otherwise than by the payment of the $1596 61, released his claim on the estate so far as regarded this sum, and the plaintiff, as creditor of the estate, then brought an action to compel the defendant to account anew for the $1596 51,. and to pay out of the same the balance due to plaintiff as such creditor.

      Held, that the action would not lie on the facts stated.

      Held, also, that if facts existed making the defendant liable to account anew at the suit of a creditor, who was a party to the final accounting, the action should be brought in behalf of all the unsatisfied creditors, or that they should be made parties.
    (Before Saotford, Campbell, & Bosworth; J. J.)
    January 7th;
    Feb. 28th, 1852.
    . This was an appeal from, a judgment rendered at a special term in favor of the plaintiff, upon a demurrer to the complaint.
    . As the questions to be determined arose wholly upon the pleadings, it is deemed necessary to state them in extemo.

    The complaint is as follows :
    The complaint of the above named plaintiff against the above named defendant, in above entitled action, respectfully shows to this honorable court,
    That the father of the said plaintiff, Joseph De Lacroix, late of the city of New York, deceased, left a last will and testament, duly executed, signed, and witnessed, bearing date on or about the twentieth day of December, 1837, wherein and whereby among other things, he first directs his executors therein appointed, to pay his just debts and funeral expenses as soon as the same could conveniently be done after his decease, and authorizes and directs his executors to sell his real estate at public auction or private sale, and make, execute, and deliver conveyances for the same. To give credit at their discretion for the purchase money, the payment whereof shall be secured by bond and mortgage upon the property sold, provided said sale shall not be within two years after his disease, except with the consent of his son Clement Joseph De Lacroix, and his daughter Maria A. Paff and Sophia Davis, and. out of the proceeds of said. sale he further directs his executors to pay certain specific and general legacies as by the said last will and testament, to which reference is hereby made, will more fully and at large*appear. That in and by a codicil to the said last will and testament, also duly signed, executed, and witnessed, and bearing date on or about the twenty-seventh day of June, 1838, the said testator duly nominated and appointed the said plaintiff, and the said defendant, and Joseph De Lacroix, executrix and executors of the said last will and testament.
    That on or about the twenty second day of February, 1839, the said Joseph De Lacroix, testator as aforesaid, departed this life, leaving the said last will and testament, unrevoked and in full force and effect. That the said last will and testament was duly proved before the surrogate of the county of New York, on or about the last of March, 1839, and the said plaintiff and the said defendant, and the said Joseph De Lacroix, so appointed executors by said last will and testament, duly qualified and took upon themselves the office and duties of executrix and executors thereof.
    And the said plaintiff further shows, that the estate of the said testator, Joseph De Lacroix, deceased, was insolvent and not able to pay the debts it owed. That such proceedings were had thereon, that on a final accounting before the surrogate of the county of New. York, it was found by an order bearing date March 22d, 1842, that there was in the hands of the said plaintiff, the executrix, assets belonging to said estate, amounting to the sum of thirteen hundred and sixty-five dollars and forty-one cents, and in the hands of the said defendant, the executor, assets amounting to the sum of seven hundred and' sixty-eight dollars and sixty-five cents.
    That at the date of the said order, there was due to the following creditors of the said estate of said Joseph De Lacroix, the following amounts, to wit: to the said Maria A. Paff (this plaintiff), the sum of fifteen hundred and fifty-nine T\\ dollars ; to Adolphus Schwanda, the sum of seven hundred and thirty-two TVo dollars ; to the mayor, aldermen, and commonalty of the city of New York, thirteen thousand nine hundred T/o dollars ; to Warren & Kursted, one hundred and thirty-three dollars ; and to Dr. Cyrus Perkins, fifteen dollars. That the assets of said estate were insufficient to pay the said claims in full, and that they were all claims to be paid in the same degree. That on a pro rata distribution of said assets, directed by said order, there was to be paid to the said plaintiff the sum of one hundred and eighty rrf0 dollars ; and to the other creditors in like proportion to their claim. That the sum of fifteen hundred and ninety-six T\\ dollars was directed to be paid to the said the mayor, aldermen, and commonalty of the city of New York, as their portion of said assets. That said order contained the further provision : “ And as it is advisable that the said sums be all paid out by one person, it is further ordered and decreed, that the said Maria A. Paff, executrix as aforesaid, after retaining the amount due to her, and paying the said Adolphus Schwanda the said sum directed to be paid him, as aforesaid, pay the balance then in her hands, to wit: the sum of eleven hundred Vo» dollars to her said co-executor, Franklin S. Kinney, with the further direction that the said Kinney pay the amounts therein above set forth to the other of the said creditors respectively.”
    And the said plaintiff further shows that, in accordance with the said direction so contained in said order, she did pay the said sum of eleven hundred TW dollars to the said Franklin S. Kinney, defendant herein. That the said defendant never paid said amount so directed to be paid to the said the mayor, aldermen, and commonalty of the city of New York. That the said corporation of the city of New York having become equitably satisfied to the whole, amount of 'their said claim from another source, concluded to release their said demand against said estate, so far as regarded the said fund of fifteen hundred and ninety-six fVV set apart to their use, as aforesaid, and they thereupon executed to the said plaintiff on or about the twenty-first day of July, 1848, a document or paper to that effect, whereof the said defendant had due notice. That thereupon the said fund became assets anew for the creditors of said estate, save and except the said corporation who claim and have no interest therein. That the said plaintiff is now the sole creditor of said estate who has a claim upon said assets in the hands of the said defendant. That the said plaintiff has made demand upon said defendant for said assets, .but that the said defendant has wholly neglected and refused to account for said assets, and still neglects and refuses so to do, or to apply the said assets or such part thereof as may be necessary to the payment of said claim. That he has applied said assets to his own use, and this plaintiff believes intends to wholly prevent the same from being applied to any legitimate object connected with said estate, and to keep the same entirely to himself in direct violation of the duties of his office as executor, and of honesty and fair dealing among men.
    The said plaintiff therefore prays, that the said defendant may be required to account for the said fund under the direction of this court, upon such terms, as to interest, as may be just and proper, under the circumstances of the case. That the said plaintiff may be paid her said claim against said estate therefrom, and may have such other and such further relief in the premises, as to this honorable court shall seem meet and proper.
    The demurrer specified the following as the causes of demurrer.
    1st. That the facts stated in said complaint do not show any right or title in the said plaintiff to demand or recover from the defendant the sum of money therein claimed, nor any part thereof. It does not show any indebtedness on the part of the defendant to the plaintiff.
    2d. That from the statement in the complaint, if the facts therein shall be deemed in law sufficient to establish any cause of action on the part of the plaintiff, it appears that such right of action accrued more than six years before the commencement of this action, and that any demand thereupon is barred by the statute of limitations, in such case made and provided.
    3d. That it also appears in like manner, from said complaint, that more than ten years have elapsed before the commencement of this suit, since the cause of action therein stated, accrued, and that it does not appear that such cause of action accrued within ten years from the commencement of this suit, and that the prosecution thereof, is barred by lapse of time and the limitations prescribed by law therefor.
    The cause was first argued before Duer, J., át a special term, in November, 1851. He overruled the demurrer, and stated the following as the grounds of' his decision.
    1st. That the release executed by the corporation must be construed as accruing to the benefit of the estate, which the defendant, as an executor, &c., was bound to administer, and that its effect was not merely to release the defendant from his personal liability to the corporation, but to restore to the estate the entire fund which had been placed in his hands, for the purpose of satisfying, rateably, the debt released.
    2d. That from the time of the execution of the release, the fund so restored to the estate must be construed as new assets in the hands of the defendant, as executor, applicable to the payment of debts and legacies in the same manner, and to the same extent, as if it had actually been then paid to him in cash, for that purpose.
    3d. That the title of plaintiff, as sole creditor, to have the assets in the hands of the defendant as co-executor, applied to the satisfaction of the residue of her debt, as established by the decree of the surrogate, is sufficiently set forth in the complaint.
    4th. That, if the statute of limitations is applicable at all tó the demand of the plaintiff, it is not so manifestly a bar, upon the facts set forth in the complaint, as to authorize the defendant to raise the objection upon a demurrer.

      E. Sandford, for the defendant, the appellant
    argued, that the judgment at special term ought to be reversed, and judgment on the demurrer be given for the defendant, upon the following grounds :—
    I. The facts stated in the complaint do not show any cause of action against the defendant. The suit is brought by the plaintiff, claiming to be a creditor of the estate of Joseph Delacroix, deceased, by virtue of a decree of the surrogate of New York, made upon a final settlement of the accounts of the executrix and executor of said estate, by which decree the extent of the claim of the plaintiff against the estate, was adjudged to be the sum of $1559 60, and the extent of the right of the plaintiff by virtue of said claim in the assets of the deceased, then in the hands of, or accounted for by the executrix and executor, was $180 35 which the complaint shows was then paid to the plaintiff. This was the extent of the right of the plaintiff as a creditor of the estate in the assets then realized, and by its judgment the executrix and executor were discharged from all further liability to pay any portion of the residue, unless assets not then known or discovered, should be subsequently discovered and come to the hands of the executrix and executor, or one of them. (2d R. S. 93, 94, sections 60, 63, 65, 70, 71.)
    II. The complaint does not show that any assets have been received by the defendant as executor, which were not embraced in the said final accounting, and were not then specifically adjudged and decreed to be paid to creditors of said estate other than the plaintiff. By the decree set forth in the complaint, all the estate which then remained to be paid or distributed, was adjudged to be payable to the creditors, and distribution was made thereby of such distributable fund among the persons adjudged to be entitled to it, and the sum to be paid to each person was thereby determined, pursuant, to the 71st section of the statute (2 R. S. 95 and 71). From the moment this decree was pronounced, the judgment of the surrogate became obligatory upon the person and property of the defendant individually. His trust ended as to all property before that time received, or in virtue of that decree received by him. The creditors of the estate had no lien upon it. The surrogate had no control over it. He could neither interfere, with the defendant in any use he might see fit to make of it, nor prevent him from making any disposition of it, nor remove him from office, and compel its delivery, or any further or other account of it to any administrator. The remedy, and the only remedy thereafter, is upon the decree of the surrogate for the payment of the money thereby adjudged. (Laws of 1837, 535, sections 63, 64, 65, 66, 67; Laws of 1844, p. 91, sec. 2; 1st Denio 407, 410, 13 Butler v. Miller; 2 J. R. 214, 220. Tom v. Goodrich; 3 J. C. 180. Clement v. Brush.)

    The averment is not accurate in point of law, that upon the failure of any creditor to compel the payment of any sum adjudged upon a final accounting to be paid by an executor to him, that the personal debt of the executor to the creditor, becomes an asset belonging to the estate, to be again accounted for by the executor to other creditors. It became a personal debt against the individual who had held the office of executor, because he had received so much of assets belonging to the estate, which on an accounting the surrogate had adjudged to belong to, and to be paid to a particular creditor ; but his debt thus established can never be an asset, nor can he ever be made liable further or otherwise than is adjudged by the surrogate's decree, unless he be shown to have received after the accounting, other property of the estate not contained in the accounting, nor included in the decree.

    While the decree stand's, the parties in whose favor it is made respectively, or those claiming immediately under them, and in virtue of the rights adjudged to them, alone can enforce it. Its execution or non-execution rests with them alone.
    If one of these creditors forbear to sue for, or to receive the amount adjudged to be paid to him within the time limited by law for that purpose, and then sue and the executor plead the statute as a bar, no other creditor can, in any manner, sue for or receive any thing from the executor on account of the debt. If the creditor delay proceedings until any proceeding upon the decree has become barred by lapse of time, and then receive, not from, the estate nor from, the plaintiff, but from some undiscovered source, what satisfies them in point of conscience, and thereupon released their claim; the operation of such a release was simply to extinguish a personal demand founded upon the Surrogate’s decree against the defendant, AND not to CEBATE a liability to pay such extinguished demand on the part of the defendant to the plaintiff.

    The confusion of ideas which evidently exists as to the effect of this transaction, arises from not discriminating between the existence of the assets, which were the foundation of the judgment of the surrogate, and the character of that decree which extinguished the character of those assets, and the office of executor, so far as the assets accounted for were concerned, and, vested the property in the executor, and substituted the obligation which the decree imposed upon him personally, for all other rights and interests of the creditors of the estate so far as then discovered.
    To conclude upon this point, we submit, First, that the decree of the surrogate extinguished the character of assets, which, before it was pronounced, appertained to the funds in hand, and then accounted for as belonging to the estate, and substituted the responsibility in person and property of the defendant, to be pursued according to law under that decree, as the sole existing and thereafter continuing claim of the creditors. Secondly, That the release of the claim of the corporation of New York, to the sum adjudged to be paid to them, extinguished all right or title to it. And no case is stated by means of which any court can either set aside the release, "or keep the decree in existence, in spite of its legal effect,—nor if either could be done, is any case stated by which the plaintiff can be subrogated to the rights so adjudged to the corporation.
    • III. If any claim existed, it is barred by lapse of time. The statute limiting actions, is founded upon the presumption that the demand has been paid. This defence is no longer looked upon with disfavor,—it is a “statute of repose.” (Marcy, J., in Purdy v. Austin, 3d Wend. R. 189.) In this case, an action at law might have been maintained upon the surrogate’s decree. (1 Bradford’s Rep. 4, Paff v. Kinney; 1 Barb. Ch. R. 456, McCarler v. Camel.)

    Before the corporation of New York released their claim against the defendant, their right of action against him was barred by lapse of time ; until such release, the right of action was exclusively in them. By virtue of such release alone, if at all, can any right arise which can be asserted by the plaintiff, as it enures to the plaintiff or springs in her favor by the action of the corporation. She takes it cum onere. She can acquire no greater right of action than they had. Claiming under them or in virtue of their act, she is as much bound as they were by their previous omissions to act. She is not within any exception in the statute. The cause of action arose on the 22d March, 1842 ; it was not sued until after March, 1851.
    The suit, appearing on the face of the complaint, not to have been brought within the time limited by law, advantage may be taken of it by demurrer. (24 Wend. 587, Humbert v. Trinity Church; 4 Paige, 178, Bogardus v. Trinity Church.)

      D. Hawley and H. W. Warner, for the plaintiff, insisted that the judgment ought to be affirmed, and argued as follows :—
    I. The surrogate’s decree of 22d day of March, 1842, did not so appropriate the money directed to be paid to the corporation of the city of New York, but that the said money remained in the defendant’s hands as executor. (Paff v. Kinney, 1 Brad. Sur. Rep. p. 9.)
    (1.) The express direction of the said decree shows the defendant was to continue to hold the said money as executor, since he was not to be discharged from his executorship until the payment over of the money. (Ib. pp. 2 and 3.)
    (2.) It was not competent for the defendant, having once acted as executor, to act with regard to the estate in any other capacity. (2 Williams on Executors, p. 1558; Graham v. Keble, 2 Dow’s P. C. p. 17.)
    (3.) The defendant could not hold the said money in his hands as his own individually, so as to make profit from his trust.
    II. The said money remaining in the defendant’s hands as executor, remained as assets belonging to the estate of Joseph Delacroix, deceased, devoted to the special purpose of paying the claim of the said corporation against the said estate,,and on the discharge of the said corporation’s claim, became general assets anew belonging to the said estate.
    III. The relation of the plaintiff and defendant was such that the statute of limitations could not attach as between them against the plaintiff’s rights as a creditor.
    (1.) As co-executors, the plaintiff and defendant were joint tenants, and possession of one was possession of both, until some act was done showing the severance of the joint tenancy. No such act is shown by the complaint. Joint tenancy applies to personal property. (2 Kent’s Com., p. 350.)
    (2.) The plaintiff could not sue the defendant at law, being his co-executor, so that there was not a concurrent remedy at law and in equity, and only the ten year equity statute of limitations (if any) could apply; and this action was commenced within ten years. (Kane v. Bloodgood, 7 J. C. R. 90; Humbert v. Rector, &c., of Trinity Church, 7 Paige, 195; 2 Rev. Stat. (3 ed.) p. 398, §§ 49 and 50; Smith v. Lawrence, 11 Paige’s Rep. p. 206.
    IY. At any rate, if the six years’ statute of limitations attach at all against the plaintiff, it could only do so from the time of the said discharge of the said corporation’s claim upon this money, which was within six years before the commencement of this action.
    (1.) By the discharge of said corporation, the fund set aside for them becoming general assets anew for the use of the said estate, must first be applied in the payment of the debts against said estate, the plaintiff’s debt being stated by the complaint and admitted by the demurrer to be the only one now existing.
    (2.) The statute of limitations only begins to run from the time the right of action accrues—some wrong done, or right withheld—and until the said discharge of the corporation’s claim, the plaintiff could not institute an action for the payment of her debt from the said fund. (Pothier, vol. 1, p. 462, part 3, ch. 8, art. 2, § 2; 3 Chitty’s Blackstone, p. 306, note; McBee v. Loftis, 1 Strolhart’s Eq. R. 90; 2 Rev. Stat. (3d ed.) p. 394, § 18.)
    (3.) The statute of limitations does not attach against the creditors of a decedent’s estate, as to after acquired or new assets, until said assets become applicable in the hands of the executor to the payment of debts. (Matoon v. Cole, 8 Ohio Rep. p. 250; Dexter v. Arnold, 3 Mason Rep. p. 284.)
    Y. The statute of limitations cannot be set up by the defendant against the plaintiff’s claim for an account, and the order appealed from, overruling the demurrer, must be affirmed with costs.
   By the Court.

Bosworth, J.

This is an appeal from a judgment at special term, overruling a demurrer to the complaint. The action was commenced on the 15th of February, 1851. The plaintiff sues as creditor of the estate of J. De Lacroix, deceased. The defendant is sued as an executor of said estate. The object of the action is to compel the defendant to account, as executor, for moneys for which he accounted in March, 1842, on a final accounting by him, then had as such executor. The theory of the action is, that certain of the moneys which the defendant then had as executor, for which he then accounted, and for which a decree was then made against him personally, in favor of the corporation of New York, became, on the 21st. of July, 1848, by reason of the facts stated in the complaint—new assets, or assets anew, in his hands, as executor, for which he is liable to account anew. The first objection specified in the demurrer is, that the complaint does not state facts sufficient to constitute a cause of action. I think that objection is well taken.

The complaint does not state by whom, or by whose property, the claim of the mayor, aldermen, and commonalty of New York, against the estate of the decedent, under and upon his order, was satisfied. It does not aver that any assets, other than those disposed of by the order of March 22,1842, were realized by either of the executors, or by the executrix. It, by implication, admits that every creditor was paid the sum adjudged by the recorder to be payable to him, except the city of New York, as nothing to the contrary is averred. It avers that the corporation of the city of New York, having become “ equitably satisfied to the whole amount of their said claim from another source, concluded to release their said demand against said estate, so far as regarded the said fund of fifteen hundred and ninety-six fVo dollars, set apart to their use as aforesaid, and they thereupon executed to the said plaintiff, on or about the 21st of July, 1848, a document, or paper, to that effect, whereof the said defendant had due notice.”

It does not aver that Kinney was not, or that the estate was, the meritorious cause or instance of producing such satisfaction. It avers an equitable satisfaction of the $1596 51 from another source than the moneys in Kinney’s hands as executor. It avers that Kinney never paid to the said corporation “ said amount so directed to be paid,” but does not aver that he never paid any part thereof, nor created or furnished that which constituted the equitable satisfaction. There is no averment, in terms or substance, that the corporation gratuitously relinquished to the estate its claim to the sum directed to be paid by Kinney. The plaintiff insists that the facts alleged in the complaint, as therein stated, conceding them to be true, operate to place Kinney in a position, on and from the 21st of July, 1848, which precludes him from denying that on that day he realized anew, in his capacity of executor, as assets belonging to the estate, the sum of $1596 51, although he, in fact, has not received or realized a dollar of money not embraced in or disposed of by the order made on the final accounting.

What was the position and liability of Kinney, and the right of each creditor at the time this order was entered ? The right of each creditor, and the extent of such right, in respect of the moneys then realized, -were absolutely and unalterably determined, provided the order was not appealed from in thé time specified by law. (2 R. S. p. 94, §§ 65, 67.)

Each creditor having a right either to a part of the fund, or to be paid anything on account of the existence of the fund, was paid the whole sum to which he was entitled, except the city of New York. Each creditor, except the latter, received actual and full payment. The order directed the plaintiff to pay to Kinney the moneys in her hands, forming part of the sum of $1596 51, and all of it except such part as he then held as executor, and directed that he should personally pay the corporation the sum of $1596 51. The payment by her to Kinney of the sum she was ordered to pay, terminated all liability on her part, and confined the rights and remedies of the corporation to proceedings to be taken against Kinney only. If the order was complied with by Mrs. Paff, and was not appealed from, it would certainly protect her against any and all proceedings against her in respect to such moneys.

Every creditor was paid his proportion of all the moneys embraced in the order, except the corporation of the city of New York. The amount adjudged payable to the latter was placed in Kinney’s hands as executor, and it was adjudged that he only, and personally, should pay to the corporation $1596 51. No other creditor had any interest, legal or equitable, in this fund, or in his obeying the order. The mqneys became the individual property of Kinney, as to all the world, except the corporation, and also as against the latter, unless on some special equity it might be proved against the fund while it existed in his hands in specie, and could be traced, to obtain payment by the application of the identical moneys received by him as such executor.

The defendant insists that the only remedy of the corporation, after the decree made on the final accounting, was an action on the decree, or the filing and docketing of a transcript of the decree, and the issuing of an execution thereon.

In Dubois v. Dubois, 6 Cowen, 494, the court held, that an action would lie on a surrogate’s order, directing one executor to pay to Ms co-executor, the amount of a legacy. The court said, “ But the surrogate, we must intend, had the proper evidence to justify a decree, whereby the defendant was to be made personally liable for a demand, which previously existed against him, in Ms representative capacity only. By the decree it became a personal matter. The judgment in this suit- cannot be of the goods of the testator, execution must go against the defendant personally, as for his private debt. I infer, therefore, that the character of the claim is changed by the decree, so that in prosecuting upon it, there can be no necessity to describe the defendant as executor.” In such a suit he may set off a demand due to him individually, from the plaintiff. (Id. p. 497.)

By session law of 1837, p. 535, § 63, 64, and 65, and of 1844, p. 91, § 2, provision is made for filing a transcript of a surrogate’s decree for the payment of money, by an executor, docketing it, making it a lien on his real estate, and for issuing an execution thereon, as upon a judgment, recovered in the court of common pleas of the county where the transcript is filed.

An execution on such a decree cannot direct goods and chattels, which were of the deceased, at the time of his death, and in the hands of the executor, to be seized by it. It can only be levied on the individual property of the executor, against whom the decree is made.

(Davies v. Skidmore, 5 Hill, 501.)

There is no pretence that Kinney is, or has been personally irresponsible, and no facts are stated in the complaint, to now exist, or to have at any time existed, which would authorize proceedings by attachment against, or to imprison Kinney, or to reach the fund itself, even it it could be traced and found in his hands, and the claim of the corporation yet existed in full force and effect, unimpaired by lapse of time, or actual satisfaction.

(The People v. Gould and others, 4 Denio, 551; Hosack and executors, v. Rogers et al., 11 Paige, 603.)

The complaint does not aver that Kinney has been released from the decree against him personally. The averment is not that the decree was released, but that the “ said demand against said estate, so far as regarded the said fund of $1596 51, set apart to their use,” has been released. The assumption in the complaint is, that moneys amounting to the specific sum of $1596 51, were separated and set apart, on the 22d of March, 1842, to the use of the corporation ; that from that time to July 21, 1848, that fund continued to exist, and that Kinney continued to hold it as executor, in trust for the corporation, and, to also hold it as assets in some such sense, that when the corporation released its claim on the fund, then and from the moment of such release, Kinney was chargeable as executor with the receipt of new assets, to the amount of the fund, in consequence of such release.

On this theory, the effect of the surrogate’s decree, of March 22,1842, was to place in Kinney’s hands, on special deposit, assets amounting to $1596 51, to be held as assets, but for the sole and separate use of the corporation, and also to adjudge that he should personally pay that sum to the corporation, and that when the corporation, without actual payment, but on being equitably satisfied from some source, not disclosed, released to “ Maria Paff, a creditor of the estate,” its demand against the estate so far as the fund was concerned, Kinney could be again called upon to account for the same moneys as new assets, notwithstanding the judgment against him remained unsatisfied in fact, and in no way released or discharged.

But the decree is not such in terms or in its legal effect. The moneys were not directed to be paid over to him, to be held by him as a trust fund ; they were to be paid over to him as a consideration and ground of decreeing that he should personally pay to the corporation, the sum which had been found to be equitably due to it. When the decree was entered, every creditor’s right in or to these moneys, or, in respect of them, was settled and determined. By the force and effect of that decree, each creditor, except the corporation of New York, was decreed to have no right in or to them, or in respect of them. The plaintiff was exonerated from all liability in respect to them, both personally and as executor, except to pay to the defendant a specified sum. She paid that, and then her duties and liabilities, personally, and as executrix, as to those moneys were ended. The defendant was charged personally with the payment to the corporation, of the amount found payable to the latter. His liability then became personal, and the moneys were his own. A decree was pronounced against him, which could be made a lien on his real estate, as the will of the corporation, and could be collected by execution on the decree out of his real and personal property. The corporation could not proceed against him otherwise than by proceedings based upon the decree for the purpose of enforcing it. That decree is subsisting, at all events the plaintiff is not the assignee of it, nor claiming as assignee of it. The corporation by reason of releasing their claim against the estate, so far as regards the alleged fund, could not confer on the plaintiff other rights than it had itself, at the time. All the corporation had, at the time of releasing, was a decree against Kinney, personally, which was outlawed. It is not alleged that this decree was released. If it had been, the liability of Kinney upon it, if any there existed, could not be transformed into a liability to account as executor, for the assets, as new assets then realized, which had been accounted for over six years previous, on a final accounting in respect to them, and on which accounting a judgment had been recovered against him personally, for the amount of them.

It is true that, in equity, the assets are treated as the debtor, or, in other words, as a trust fund, to be administered by the executor, for the benefit, and according to the rights of all persons interested in it. (1 Story’s Equity, 543, ,§ 579.) But since the adoption of the revised statutes, there is no such thing known, as the assets in the hands of an executor being, at law, the debtor, or a creditor’s having a lien on them, but the person of the executor in respect to the assets, which he has in his hands, is treated as the debtor. (2 R. S. 88, § 32; 9 Wend. 448, 487; 18 Wend. 666.) No execution “ de bonis testatoris” can now be issued. For injuries to personal property, which was of the deceased, done after his death, or for a subsequent conversion of it, the executor may sue in his own name, without describing himself as executor, he being regarded, at law, the real owner. (5 Cowen, 267, Baker v. Baker; 13 Wend. 591, Holbroke v. White; 4 Hill, 57, Patchin v. Patchen.)

But if a state of facts appeared by the complaint to have existed at, or prior to, the time of the final accounting, which would have authorized proceedings by the corporation, to reach and obtain a transfer of specific moneys,- to the amount of $1596 51; yet, as it elected to take a judgment, or -decree, on such accounting, against the executor, personally, for the amount, such election and decree are a bar to all proceedings to reach the moneys, and from the entry of the decree, they became the property of Kinney, as well against creditors, as against third persons. Every contingent equitable right to the assets, was merged in the personal judgment against the executor. (3d Cowen & Hill, p. 823, and cases there cited.)

If this action can be maintained upon the facts stated in the complaint, it is difficult to say that one would not lie at the suit of a creditor, on the allegation that Kinney had not paid any part of the moneys to the corporation; that its right to take proceedings to reach them, was bound by lapse of time ; and that Kinney had not, since they were set apart to the use of the corporation, made any promise to pay, or acknowledged any liability to pay them.

It is unnecessary to discuss, and it is not intended to express any opinion, what would be the rights of the estate, or of its creditors, if the complaint had stated facts, which showed that the estate was the source from which equitable satisfaction had been derived, and in consideration of that, and for the benefit of the estate, the corporation had released Kinney from the decree against him, and its claim against the estate, pro tanto, by a release to the plaintiff and defendant, as executrix and executor : such is not the case made by the complaint.

The complaint shows that on thé final accounting, several persons were found to be creditors of the estate, neither of whom was paid more than his proportionate part of his debt: it is not averred that either of them has since released his debt, or been paid in full. Unless they have released, or been paid, they should be made parties. The allegation that the plaintiff is now the sole creditor of said estate, who has a claim upon said assets in the hands of the said defendant, is not, in substance or effect, an averment, that she is the only creditor of the estate, and that all of the others have discharged the estate from all claims and demands. If a case can be made, giving the plaintiff a right as creditor, to call the defendant to account as executor, a suit for that purpose should be brought in behalf of all the creditors, or they should be made parties to it.

It seems to be unnecessary to express any opinion as to the effect of the statute of limitations upon the demand made against the defendant, or upon the claim of the plaintiff, as creditor. If, upon the facts stated, the defendant cannot be said to have realized new assets, or assets anew, on the 21st of July, 1848, then the facts stated are not sufficient to constitute a cause of action. Nothing has come to the defendant’s hands which was not accounted for in March, 1842. He is not to be again required to account for the same moneys by any creditor who was a party to that accounting.

The order overruling the demurrer should be reversed, and judgment given for the defendant on the demurrer, with liberty to the plaintiff to amend her complaint within twenty days as she may be advised, upon payment of the costs of the proceedings on the demurrer, and of this appeal.