31 N.Y.S. 650 | N.Y. Sup. Ct. | 1894
The plaintiff in this action is the son of Thomas Brown, deceased, who died on the 2Sth day of February, 1893, leaving a last will and testament, which has been duly proved and admitted to probate. The defendant, who was the second wife of the deceased, and the stepmother of the plaintiff, was appointed the executor of the will of her husband, and duly qualified as such. In the year 1876 the plaintiff was injured by the Brooklyn City Railroad, and his
The action was authorized by chapter 487 of the Laws of 1889, which provides that any creditor of a deceased insolvent debtor, having a claim or demand against the estate of such deceased debtor exceeding in amount the sum of $100, may, for the benefit of himself and other creditors interested in the estate of such deceased debtor, disaffirm and treat as void all acts done and conveyances made in fraud of the rights of any creditor by such deceased debtor, and for that purpose may maintain any necessary action to set aside such transfers or acts; and for the purpose of maintaining such action it shall not be necessary for such creditor to have obtained a judgment upon his claim or demand, but such claim or demand, if disputed, may be proved and established upon the trial of such action. The plaintiff did not sue in behalf of himself and other creditors, but that defect was waived by a failure to raise the question by answer or demurrer. It became necessary, however, for the purpose of administering the full relief contemplated by the statute, to ascertain in some way the other creditors of the deceased, if any there were. For that purpose an'interlocutory judgment was entered appointing a referee to advertise for creditors, and upon the coming in of that re
It is the insistence of the defendant that the deceased received the money recovered from the railroad company without authority, and under circumstances which rendered it his duty to pay it over to the plaintiff at once; that an action for money had and received could have been maintained for its recovery without any demand, and therefore the statute of limitations commenced to run upon the receipt of the money. On the other hand, the plaintiff contends that« the deceased was the trustee of an express trust, and received the money in question in that capacity, and therefore the statute did not begin to run against the plaintiff until the deceased openly renounced or repudiated the trust to the knowledge of the plaintiff. Upon that question of the statute of limitations our conclusion is in favor of the appellant. The father of the plaintiff received the money of the plaintiff which was the proceeds of his recovery against the railroad company without authority, and, as he had no right to receive it, he was destitute of authority to retain it. The relation which the law created between them was that of debtor and creditor, and not that of trustee and beneficiary. There was neither “trustee,” “trust fund,” nor “beneficiary,” within the legal meaning of those terms. It was neither the intention nor contemplation of either party to create a trust, and the deceased was charged with no trust with respect to the money he received, either in its management or control. In the case of Kane v. Bloodgood, 7 Johns. Ch. 90, Chancellor Kent said:
“The word ‘trust’ is often used in a very broad and comprehensive sense. Every deposit is a trust; every person who receives money to be paid to another, or to be applied to a particular purpose, to which he does not apply it, is a trustee, and may be sued either at law for money had and received, or in equity as a trustee for a breach of trust.”
According to this principle, every lawyer who collects money for his client—in fact, every one who receives money for another—holds the same in trust. But such persons are not trustees of a subsisting trust in the sense in which that term is legally and properly employed. They receive money belonging to another, which, according to equity and good conscience, they are bound to pay over, and they become debtors for the same. It is true that persons receiving money in a fiduciary capacity are sometimes denominated “trustees ex maleficio” and “trustees de son tort”; but when such terms are applied they are employed only to designate those implied trusts which the law sometimes raises for purposes of justice, and to such trusts the ordinary rules of limitation apply. The six-years statute is applicable. Mills v. Mills, 115 N. Y. 85, 21 N. E. 714. Mr. Perry, in his work on Trusts (section 245), says: “A person may become a trustee by construction by intermeddling with and assuming the management of property without authority;” but such persons are not trustees of an actual, subsisting trust. Such trusts are continuous, and have well-defined characteristics, which impart to them validity and vitality, and require administration in the interest of
“As long as there is a continuing and subsisting trust acknowledged or acted upon by the parties, the statute does not apply; but if the trustee denies the right of his cestui que trust, and the possession of the property becomes adverse, lapse of time from that period may constitute a bar in equity; but other trusts, which, are the ground of an action at law, are not exempt from the operation of the statute.”
This case falls into the last category mentioned, and a cause of action accrued to the plaintiff when his father received his money. The case of Parks v. Satterthwaite, 132 Ind. 411, 32 N. E. 82, is quite similar to this, and is very instructive upon the questions here involved.
There is, however, another question for solution. The plaintiff insists further that the statute of limitations did not commence to run against him in respect to his claim against his father until March, 1892, because he had no knowledge of the receipt of his money by his father before that time; and that position is based upon the following provision of the statute:
“Where a right exists, but a demand is necessary to entitle a person to maintain an action, the time, within which the action must be commenced, must be computed from the time when the right to make the demand is complete, except in one of the following cases: Where the right grows out of the receipt or detention of money or property by an agent, trustee, or attorney, or other person acting in a fiduciary capacity, the time must be computed from the time when the person, having the right to make the demand, has actual knowledge of the facts upon which the right depends.” Code Civ. Proc. § 410.
A trial judge has found that the plaintiff learned of the collection of the money by his father about December, 1891, but if that is to be construed as a finding that he had no knowledge of such payment previous to that time, then the finding is entirely destitute of evidence for its support. There is no such proof in the case, and there is no testimony from which any such inference can be naturally drawn. On the contrary, the fair and natural inference from the testimony is the other way, and adverse to the plea of ignorance set up by the plaintiff. Let us examine. In the first place, the trial judge has found as a fact that the plaintiff knew of the recovery in his favor against the railroad company before his majority, but not the amount. In the next place, the plaintiff stated in his verified complaint that he had almost lost all recollection of the fact that a suit had been brought for the recovery of damages for his injuries, and that his father had received any money for him as guardian ad litem.; that these facts were brought to his mind from a conversation he had with his friends. The language plainly implies that he had knowledge of the facts he states, but had almost lost all recollec
First. The receipt of the money created the relation of creditor and debtor between the plaintiff and his father.
Second. That although an action could have been commenced in
Third. That the disability of the plaintiff resulting from his infancy was removed by the attainment of his majority more than six years previous to the commencement of this action, and that the six-years statute of limitation is applicable to this action.
Fourth. That the plaintiff must be deemed to have had knowledge of the receipt by his father of the money recovered from the railroad company immediately after its reception, and does not, therefore, come within the exception provided in subdivision 1 of section 410 of the Code of Civil Procedure.
Fifth. That the judgment should be reversed, and a new trial granted, with costs to abide the event.
All concur.