New v. . NicollNew v. . Nicoll
*1 v. Nicole. Statement of a a the trust estate for him as trustee lien upon would give the made, it be that the benefit of may which they the lion for the deem it a case to enforce court would proper is, a due the the debt benеfit of plaintiff—that apply judg- the a to the satisfaction of ment-debtor Such judgment. not claim in favor of a would be beyond judgment-debtor reach of a creditor’s bill. As account as Van Vochten’s trustee of homestead settled, farm has not been there arise none of the would ques- the last trial as to the tions effect statute of limitations as the claim of the plaintiff, upon affecting the case con- was tried. But without theory upon farther, must, for reasons suggеstion jugment sidering reversed, stated, bo a trial had.
All concur. reversed.
Judgment Augustus Appellant, W. New, Tobias Nicole, Trustee, etc. a creating
"Where trustee is authorized terms instrument expenditure protection trust to make which is for the estate, reparаtion of the trust and has funds in his hands for the another, purpose, express agreement may, by exempt himself liability, expenditure make charge upon the estate. however, charge, To create alien or agreement such there must be some effect; it doing is not sufficient making the work or expenditure did it the faith and credit of the estate. Where agreement, there has been no such consequence and in the trustee chargeable individually expеnditure, for the trustee sub- cannot estate, sequent promise out thereon; give a lien to transfer the charge from the trustee to the agree- there must either be an ment based consideration, some new or an assignment of the lien or claim which the trustee has expenditure. the estate for the 22, (Argued February decided March Appeal from order of the General Term the Supreme in the Court second judicial department, reversing judg- [March, New ®. Nicole.
Statement referee, in entered ment favor of report below, Hun, trial. 12 granting (Reported 431.) defendant, trustee, This action was brought against estate in his hands with amount of a claim for done and used in work materials build- repairing trust. the rеal estate held in ings opinion. facts sufficiently appear Moak, for It was appellant. duty Nathaniel C. made, and for them out of the repairs trustee have the income the income of the estate. He could have pledged Y.,N. v. 6 for that 567; Stan purpose. Y., 21 N. 8 Chateau v. 5; Suydam, 179; ton v. King, id., 477, on Trusts, 47 2 Perry v. 678; (§ Anderson Dillaye, Atk., 485, 526, 552, 540, Hide v. 2 Haywood, 126; 910;. Wms., v. 6 Halshaw, 1 P. 455; Darby, v. Caffrey Balch id., Clark, Ves., v. 8 Dawson 8; Hartford, 497; Worrall v. Stu., Wilkinson, 2 & id., v. Sim.* 237; 18 254; Wilkinson S.,& Sand., 531, 542, 7 J. Randall v. 544; Dusenbury, 3 Clarke, Abb., 9 Y., 358; v. 63 N. Wet- 645; Mallory 174; Pennock, Hobsman, id., 2 14 v. 318-319; Magraw v. more Stover, Y., v. 58 N. 89, Cаs. Davis 93-95; Grant’s [Pa.], 146; Miller, Vt., 47 R. Co. v. Bradbury R. and R.S. 473; Mass., 569, Lewin Trusts Birchmore, on 580-582; v. 117 [2d 431-432, m. id. Am. p. 513; 487; Eng. ed.], ed.], [6th St., Session, Rider 7 7 Penn. v. 258; Dickerson’s Appeal, id., Norcom, Smith, 10 I., 283; v. v. Long R. 341; Williams C., Brown, Y. & 181; v. 2 Barlow Ired. Bridge 2 Eq., 354; Ch., Bostwick, 4 Vern., Grant, 100; in re J. 255; 1 v. Weems, v. 17 N. Button Eq., 59; v. J. Kearney Kearney, Wilkinson, 6 Humph. & Hester 12 G. 84; [Md.], v.. Me., 60 v. v. 225; Ferry Robinson Hersey, 215; [Teun.], Richardson, Mad., 3 Liable, 27 Ex 147; N. J. Eq., parte K., & Andrews, M. Cutbush v. v. 1 116; 138; Thompson Acton, 4 Cutbush, DeG. Mac. & Beav., McMillie v. 185; 1 Pet., G., 14 Defendant v. 744; DeValengin Duffy, 290.) contract made with pay, according having 129 ©. Nicoll. (Com. Osborn, as his bound it. plaintiff by agent, Warren, 577, Y., Janes, 15 N. Bank v. Johnson v. 580-581; Barb., 369, etc., 4 v. Peterson Mayor, 17 372; time ratification related back to the This orig Hill, inal Moss v. Taylor, obligation. (Lawrence Rossie, id., Y., 648, Keeler v. 33 N. Salisbury, Jones, Barb., 369, Peters, Johnson Brigham *3 Bleeker, R, 12 Cairns v. J. Gray, 139,147; 300; Greenfield 4 AL, 447, Bank v. Crafts, 454.) More, for E. Even if respondent. trustee had he would not be liable under employed plaintiff, Sand., v. 3 Seld., proved. 2 543; Munro, 47 Austin v. N. Ferrin 41 567; 366; v. Myrick, id., 8 Trustees, v. Lewis on King, Staunton 315; 4; Jones, Barb., Ves., 18 Hare, v. 8 Cruger 1 530; 467; 4; F., G., 12 & 5 M. & Cl. DeG. 507; Plaintiff 571; 108.) could not recover Mrs. Reynolds against personally, Nicoll, as her executor. Fоster, v. 35 against (Campbell Y.,N. 361; Co., v. M. and T. F. Ins. id., Williams 54 577; (Codd Rathbone, id., v. 19 id., Arnold 62 v. Angell, 508;, Co., id., R. 38 Coleman v. Second Ave. R. v.. Bradley Aldrich, id., 40 Burdon, Abb., 15 Stevenson 352;. Fairchild, Rome, etc., Mann v. 2 Eames, Keyes, 106; Bank id., 14 Y., Heywood City Buffalo, of In 1866 real certain estate in the of city New Earl, Yоrk was to the defendant Nicoll conveyed upon trust to the rents, thereof, issues and receive and after profits paying taxes, therefrom all assessments and other thereon, charges the rest and residue to the sole and аpply use separate I.V. Sophia life, her natural and Reynolds, after her during decease trust to the real estate as she her last convey will and testament direct, should default of such and direction to divide the same his children. Nicoll among took possession real estate and assumed the duties of the trust. XXVIII.
Sickels.—Yol. [March, ®. Nicoll. per real estate certain were were buildings tenants, rented to and in those various were buildings much out of and certаin .were repair, repairs for protection preservation and to ren- buildings, them tenantable and fit for der In occupation. months of that of March April did a year large amount of those and this repairs buildings, trustee, recover Nicoll as for such brought repairs. and defendant material witnesses. There did the dispute repairs .amount claimed him, but there was as to the dispute under work was employment' arrangement The defendant testified that he did not emрloy work, do the and never 'but him; Osborn, who was to furnish all the labor and employed material for the and that he was to deal repairs, *4 him, and and that he had him. The pay mostly paid plain tiff's evidence tended to show that he was emplоyed by defendant, Osborn and that after the work was agent done the defendant to him for the work out of pay the trust estate. There no claim that his defendant, (cid:127)contract for the work was with directly or that he had interview with the defendаnt whatever any until after the work was he Whatever arrangement made in reference to the work was made exclusively died commenced. Osborn who had before this he Plaintiff testified that he asked how Osborn get “ is all : The estate do Jais and that Osborn said pay, right; it, I out will work make bill estate; certify ; your he on and it,” and that then went :and Mr. Nicoll will pay made, the these did the work. At the time repairs (cid:127) t hands out in his defendant had no trust funds o for them. cannot a trustee is that rule undoubtеdly general unless contracts his executory the trust estate by charge creat- instrument of the the terms authorized do so Nicole. Eabl, liable, the trust. such contracts he is ing personally is him But there are remedy personally. rule. a trustеe is When author exceptions general ized to make and he has funds, no trust expenditure for the the expenditure protection, reparation estate, of the trust and he is not safety to make willing liable, himself he personally make may by express agreement expenditure estate. In such case could himself advance the to make the money expenditure, have lien he.would the trust and he can contract by express transfer this lien:to othеr any who the faith party may trust estate make the expenditure. Ct., R., Sand. Sup. C., Y., 6 N. S. Randall v. 39 N. Y. Dusenbury, Ct. R. J. & C., Superior S. S.], [7 King, Etanton
Here, if Osborn had any defendant, whatever for agency it was simply some one to employ make the If repairs. authorized to Jie was make contract them, about any it was contract in such simply ordinary cases which would bind the trustee and not the trust personally, estate. There can that he be no was authorized to pretence the trustee exempt and to makе an personal liability, express agreement expense repairs upon estate. charging It not sufficient for him ivas show did the work the faith or credit of the trust estate. He could aget *5 or lien the trust upon estate virtue of somе charge only by to that effect. Therefore, the facts of this agreement upon case, as viewed the as arewe favorably plaintiff justified them, in he cannot maintain this action. viewing order of affirmed, General Term should be absolute for ordered, defendant with costs. .judgment n concur, All J., Miller, except Church, dissenting J., not Ch. voting. a subsequent motion for the following reargument handed was down :
opinion [Marchy í>. Nicole. Com-t, of the Earl, This motion for is reargument based upon the- that supрosition erroneous points now made were over- were They carefully looked. considered but ; were they them, in noticed not I opinion, will specifically now give theAs brief consideration. of the judgment Special Term Tеrm General by was reversed upon both the law and facts, the facts before were us for consideration as- just before the Term. General they made that after The claim work was all done the- by the defendant- ratified the plаintiff, agreement the estate would that pay plaintiff. Osborn Whether there- or not depends such ratification was evidence solely upon burden, and defendant. The had the plaintiff it, and his evidence tends to show somewhat to show (but- that entire there not was such ratification. certainty,) defendant denied this, But the and the circum- positively to sustain Hence tend him. stances we should be reluctant- there sufficient evidence to hold was of the ratification. full all to, if force to But we testified give that a are not sufficient show the estate was charge As shown the former created. there no- opinion, sufficient to estate before the work was charge agreement There was at most personal charge against Then, in order to transfer defendant. from him estate, and to action, cause of he give have, what did not before ? It could be First. done in one two an based ways. By agreement consideration second. ; some By assignment or claim the defendant the estate had upon of the lien There is that there pretence for these expenses. any and the not evidence does show such new agreement, meant to or that the the defendant expected assign, lien would or claim he had estate. any assign, case, In such a has done where work upon per- party trustee, he can no lien sonal responsibility get estate of the trustee to the mere promise *6 is no him out of the estate. There emergency then Speis. i>. Barton Statement of to a lien authorizes the trustee create ¡and be to transfer his. That was not all could do would this case. done in
The motion must be denied.
All concur.
Motion denied. Mаry Appellant, Respondent. Barton, Speis, Anne note, note, brought guaranty promissory 'This action was plaintiff guaranty, assigned maturity. to after with The former brought against action an holder of note the maker and defendant demurred, sustаined, jointly. Defendant the demurrer was with Held, plaintiff payment to amend on leave to of costs. that the court stay proceedings power had to payment this action until of costs suit, plaintiff equities; in the former took subject еxisting the claim to obligation not relieved pay costs abandon- ing one; and, commencing the former a new nominally the former pending, action was still and that the maker of therein, joined the note was were immaterial. 22, 1878; February (Argued decided March Appeal from order of the General Term of the Supreme Court in the fourth judicial department, order affirming Term, Special costs in a requiring action, former herein until such staying proceedings payment.
This action was defendant brought against guar- anty of a note executed payment promissory by Anthony her Speis, Parlchouse, husband. Barton and the original note, .holders of the an action the maker and brought defendant, as jointly. guаrantor, demurred, defendants of causes because of misjoinder the demurrer costs, leave
action; sustained with amend on thereof. The payment thereupon note, transferred the with the guaranty, .Evarts, who same to herein. assigned