206 A.D. 777 | N.Y. App. Div. | 1923
Judgment affirmed, with costs, and this court makes a further finding in support of the judgment that the trust in the stock in question existing in John S. Huyler, as executor and trastee under the will of David Huyler, deceased, was repudiated by him, and title and ownership therein claimed by him individually on August 4, 1885, and that plaintiff had knowledge of such repudiation and claim of title and ownership more than ten years prior to the commencement of this action. We are of opinion that this action is not based upon fraud, but is one to recover property belonging to the estate of David Huyler, and that the burden of proof was upon the defendants to establish the fact that John S. Huyler repudiated his trust with knowledge thereof on the part of plaintiff more than ten years before the commencement of the action. We are also of opinion that that burden was sustained and that fact established by the evidence. Manning, Kelby and Young, JJ., concur; Kelly, P. J., concurs as follows: I concur in the result, but I