146 N.Y.S. 508 | N.Y. App. Div. | 1914
On August 23, 1894, George E. Sill of Hartford, Conn., loaned $3,385.45 to Hubert K. Wood and received from him the following instrument:
“Hartford, Conn., August 23rd, 1894.
“ On demand after date I promise to pay to George Eliot Sill or order the sum of Three thousand three hundred and eighty-five A/V dollars, with interest at the rate of "six per centum per annum from date.
“ To secure the payment of the above amount and any accumulated interest I hereby assign and set over to the said George Eliot Sill all my right, title and interest in and to a certain trust created by the will of my late grandfather George Wood of Hew York City; which trust is now held by Frederick Wood of Morristown, H. J., as trustee for the benefit of Julia Wood of Morristown, H. J., and my proportion of which trust is payable to me or my order at the death of the said Julia Wood. Provided that any balance remaining after the payment of the above amount and any accumulated interest shall be paid over to me.
“HUBERT K. WOOD.”
The will of George Wood, admitted to probate by the Surrogate’s Court of Hew York county Hovember 10, 1862, created a trust of certain real property for the benefit of Julia Wood
On September 3, 1909, said Hubert K. Wood executed and delivered an instrument to Charles B. Barkley by which he granted, bargained and conveyed all his right, title and interest in and to the said trust fund to the full extent of $4,000, together with interest at the rate of six per cent thereon, from the date of the death of said Julia Wood, and appointed the party of the second part his true and lawful attorney for his own benefit, to make demand, sue for and collect said amount. In said instrument he expressly subordinated his assignment to the estate of George E. Sill to this assignment to Barkley. Prior to the said transfer to Barkley, the said Burke, as administrator, with the consent of the hens at law and next of kin of said George Eliot Sill, released, to the extent of $4,000 and interest, the said assignment made' by Hubert K. Wood to George Eliot Sill, and so informed the United States Trust Company.
On February 14, 1913, the Nestor Manufacturing Company,
On October 16, 1913, the defendant Flynn was duly appointed receiver in supplementary proceedings and the order was duly filed and Flynn duly qualified. On October 8, 1913, the plaintiff Hills was duly appointed administrator in the place of Burke in the Probate Court of Hartford.
The injunction contained in the order of May fourteenth was modified by a stipulation executed by Nestor Manufacturing Company, Wood, Flynn as receiver, and the trust company, and an indenture executed by said parties and Hills, Barkley and William E. Sill and Helen Sill Wood. Pursuant to said instruments.the trust company holds the sum of $650 of the share of Wood in said trust fund, subject to the adjustment of the claims thereto of his creditors, Nestor Manufacturing Company and the estate of George Eliot Sill, deceased, his assignee.
Pursuant to said instruments the trust company has paid out the balance of Woods’ share, $4,603.51, to Barkley and Hills as administrator. No action was ever brought in the New York courts upon the said judgment recorded in the State of Connecticut, and the said assignment from Wood to Sill was never filed in the office of the clerk of the county of New York.
Notice of the assignment from Wood to Sill was given to the trust company prior to the assignment to Barkley. The said Wood was a resident of Connecticut until the first half of the month of September, 1907, and since has been and is now a resident of New York. No part of the said judgment and note
This agreed statement of facts is without prejudice to the running of the Statute of Limitations, if the same has run against the said assignment from Wood to Sill or the indebtedness secured thereby.
Plaintiff demands judgment decreeing that the defendant United States Trust Company pay to him as administrator de bonis non of George Eliot Sill, deceased, the said sum of $550 on account of said assignment.
Defendant Flynn prays for judgment decreeing that the company pay said sum to him as receiver in supplementary proceedings upon the judgment recovered by ¡Néstor Manufacturing Company against Wood.
The defendant trust company prays for judgment decreeing to whom it shall pay out the said sum.
The plaintiff-claims that the note and assignment as security constitute a pledge; that it is a chose in action and that the pledgee may retain or sell the pledge, though the debt to secure which the pledge was given is outlawed.
The question involved is what interpretation shall be given to the instrument Exhibit “A.” It was an unsealed promissory note, dated August 23, 1894, containing an assignment of so much of Wood’s vested remainder in a trust estate limited on the life of Julia Wood, the cestui que trust, as would pay the amount thereof. As against the note itself the Statute of Limitations has run, but judgment was obtained on the note in Connecticut before the running of the statute. The entry of judgment does not affect the assignment. “A party who holds property under a pledge' to secure a debt of the pledgor does not destroy the pledge or affect his rights under it by prosecuting his debt to judgment. The pledge still remains the security for the judgment debt, or so much of it as it was originally made to secure.” (Sickles v. Richardson, 23 Hun, 567. See, also, Fisher v. Fisher, 98 Mass. 303; King v. Hutchins, 28 N. H. 561.)
In National Park Bank v. Billings (144 App. Div. 536; affd. on opinion below, 203 N. Y. 556) Mr. Justice Miller said: “The will of Chester Billings, deceased, does containa gift to appellant, not in express words, but in a direction to trustees to divide and pay; wherefore futurity is annexed to the substance of the gift, the same as though there were express words of gift with futurity annexed to the substance thereof by express words. * * * The appellant then acquired upon the death of his father, not a bare possibility merely, but the right to the possession and enjoyment-of one-half of his father’s estate in the event that he should attain the age of twenty-five years and survive his mother, and that right was not subject to the will of a third party. The question is whether such a right or interest is property .within the meaning of section 1871
“ For what reason or upon what principle can it be said then that a future contingent interest in personal property is not assignable at law as well as in equity ? Hot because such right or interest does not exist, because we have seen that it is a present right, which cannot be defeated by the act of a third party, and which will ripen into an estate in enjoyment upon the happening of a contingency. * * * In this case there is no uncertainty of the person; the appellant is named as the donee; he will take only upon the contingency of his surviving his mother, but his being then in existence is no part of the description of him, as donee. His survivorship being one of the contingencies, his contingent interest is of course not transmissible to his personal representatives; whereas, if the contingency were some other event, it would be transmissible. (Kenyon v. See, 94 N. Y. 563.) But that fact does not militate against its assignability, as shown by Woodruff, J., in Moore v. Littel [41 N. Y. at p. 86]. Surely an interest which is transmissible to personal representatives is a property interest and should be held to be assignable as well in law as in equity. A contingent interest is always subject to be defeated, else it would not be contingent; the nature of the interest, as a species of property, is not affected by the contingency upon which it will vest in possession; there being no uncertainty as to the person. If the survivorship of the donee be the contingency it will not he transmissible to his personal representatives, but it may still be assignable, the assignee of course taking subject to the chance that it may never vest in possession.”
It is clear, therefore, that the interest of Wood in the trust estate created by his grandfather’s will was alienable by him.
In House v. Carr (185 N. Y. 453) Chief Judge Cullen said: “ A pledgee may retain or sell the pledge, though the debt to secure which the pledge was given is outlawed. (Jones v. Merchants’ Bank of Albany, 6 Robt. 162; Jones on Pledges, § 582.) This is not on the theory that by lapse of time title has vested in the pledgee, for the law is otherwise (Jones on Pledges, § 581), but because the statute bars merely the remedy by action.”
I cannot see how any Statute of Limitations can be held to have run against this claim. The assignee had done all that he was called upon to do by filing notice with the trustee. It was impossible for any one to collect during the lifetime of the cestui que trust. If we should look at the assignment as a pledge no duty devolved upon the assignee to sell his claim. He had a right to hold it until it was collectible.
In Hulbert v. Clark (128 N. Y. 295) Judge Earl said: “It is a general rule recognized in this country and in England that when the security for a debt is a lien on property, personal or real, the lien is not impaired because the remedy at law for the recovery of the debt is barred.”
The plaintiff as the administrator of the assignee Sill is enti
Ingraham, P. J., Laughlin, Scott and Hotchkiss, JJ., concurred.
Judgment ordered for plaintiff as directed in opinion, without costs. Order to be settled on notice.