68 N.Y.S. 205 | N.Y. Sup. Ct. | 1901
The plaintiff, by his amended complaint, sues the defendants as trustees under the last will and testament of Frank Wilkinson, deceased, for an unpaid balance on an oral contract alleged to have been made with the decedent for the sale of certain land in Connecticut. In their amended answer the defendants, after putting in issue the material allegations of the amended complaint, set np four affirmative defenses, and the plaintiff demurs to each defense on the ground that it is insufficient in law upon the face thereof.
It must be assumed that the new matter constituting each defense is pleaded as a complete defense, and it must be tested as such. Thompson v. Halbert, 109 N. Y. 329.
The first affirmative defense is a plea that the decedent was an alien of the Hnited States, and a resident, householder and manufacturer at Beeston, in the county of Ffottinghany England; that, at the date of the contract in question, as the plaintiff well knew, the decedent could not, under the laws of Connecticut, acquire good title as such alien to laud situate in that State; by reason whereof, as plaintiff well knew, the decedent, in behalf of himself and others, caused to be organized a corporation under the laws of Kentucky, with a view of said company acquiring, together with other real estate in Connecticut, the property mentioned in the complaint, and, with that view, and for that purpose, and no other, the sums mentioned in the complaint as having been paid by the decedent to the plaintiff were paid to him by said corporation in connection with the acquisition of said property by and the deeding of same to said company.
The second affirmative defense alleges that a certain fund in the hands of third parties, which has been attached by the plaintiff in this action, was and is held by said third parties as the property of these defendants as executors of the decedent, and not otherwise.
Executors as such may hold money of their testator separate and distinct from property held by them as trustees. “ The office of an executor, and that of a testamentary trustee, are essentially distinct, although not infrequently the same person is appointed both executor and trustee. In the former capacity, it is his duty to collect the property and pay the debts and legacies; in the latter, he is called upon to invest and manage a particular fund or trust estate, in accordance with the directions of the will. * -x- * Where the will appoints a person executor, and then imposes upon him, as such, the execution of a trust, then the appointee, by proving the will and qualifying as executor, will be deemed to have accepted the trust; and he is accountable in each capacity separately. It is as if two different persons had been appointed to the two offices.” Redf. Surr. (5th ed.) 269; and see Hillman v. Stephens, 16 N. Y. 278; Town of Bridgewater v. Town of Brookfield, 3 Cow. 299.
In their third affirmative defense the defendants plead their non-residence and alienage; that the summons and complaint in the action were not served on them or either of them; that the summons and complaint were served by publication and mailing; that none of the defendants has any property in this State except the sum attached, which sum belongs to them as executors of decedent; and that, therefore, the court has no jurisdiction over the persons of defendants.
If the defendants, as trustees, the capacity in which they are sued, have no property in this State, the plaintiff cannot invoke jurisdiction in rem upon the argument of this demurrer. The defendants served no notice of general appearance in the action. The case is, therefore, distinguishable from Reed v. Chilson, 61 Hun, 623; 40 N. Y. St. Repr. 960; affd. 142 N. Y. 152, and comes within the decision of Hamburger v. Baker, 35 Hun, 455, in which it was held that the service of an answer by the attorney of a non-resident, pleading want of jurisdiction, could not be regarded as a general appearance of the defendant rendering him amenable to the jurisdiction of the court. See also Landers v. Staten Island R. R. Co., 53 N. Y. 460. The demurrer to the third defense must, therefore, be overruled.
It may appear at the trial that the court has complete jurisdiction, as was decided upon the demurrer to the complaint (Belden v. Wilkinson, 44 App. Div. 420), but such conclusion is inconsistent with the admissions made by the plaintiff’s demurrers. Demurrers are generally dangerous, and particularly so in cases of this character.
In his complaint the plaintiff alleges the payment of interest by the decedent on the debt for which suit is brought down to September, 1894. This allegation is denied by the answer.
The Code (§ 390) provides that “ Where a cause of action, which does not involve the title to or possession of real property within the State, accrues against a person, who is not then a resident of the State, an action cannot be brought thereon in a court of the State, against him or his personal representatives, after the expiration of the time, limited, by the laws of his residence, for bringing a like action, except by a resident of the State,” etc.
Before the enactment of this statute, a foreign Statute of Limitations could not be pleaded in bar of an action brought in this State; the lew fori governed in such a case. Miller v. Brenham, 68 N. Y. 83. It has been held that the statute extends to nonresident debtors the protection of the foreign Statute of Limitations in cases where it has run and effectually discharged the debt according to the laws of the debtor’s residence. Howe v. Welch, 3 How. N. S. 465; 17 Abb. (N. C.) 397; affd. 3 N. Y. St. Repr. 576; Taylor v. Syme, 17 App. Div. 517, reversed on other grounds, 162 N. Y. 513. As the parties are non-residents, and the action does not involve the title to or possession of real property within the State, the demurrer to this defense must, therefore, be overruled.
Demurrer to first defense sustained; demurrers to second, third and fourth defenses overruled, with leave to the plaintiff to withdraw said demurrers as to said three defenses if he elects to do so.
Demurrer to first defense sustained, demurrers to second, third and fourth defenses overruled, with leave to plaintiff to withdraw said demurrers to said three defenses if he elects to do so.