34 N.Y. 180 | NY | 1866
There are several points in this case which merit attention.
1. Upon the facts found by the referee it is apparent that the interest moneys accruing upon the $3,000 mortgage, which were retained by Gurnee, became a part of the principal of the trust fund in his hands, and the plaintiff was entitled to one-half of the interest thereon, subsequently to January 2, 1849. The executors held the land referred to in the complaint, in trust, to pay the rents and profits thereof to the plaintiff and Charles Rundle, in equal shares. The execution of the power of sale by the executors, and the conversion of the land into securities for the payment of money, did not terminate the trust nor extinguish the plaintiff's interest in the trust fund. According to the provisions of the will, as found by the referee, the plaintiff had the same right to one-half the interest accruing on the securities, as she previously had to a moiety of the rents and profits of the land. The agreement which she made with her co-executors to induce them to consent to a withdrawal of the note for $771.75 from the trust fund, was not intended to transfer to them, in their own right, her share of the interest accruing on the mortgage for seven *182 years. The executors were to retain and accumulate such interest for the purpose of restoring to the fund the amount which was withdrawn from it by the transfer of the note. When the amount was thus restored, the plaintiff was entitled to interest upon it thereafter as well as upon the balance of the fund.
2. The appellants insist, however, that there is no evidence to support the finding of the referee, that the money claimed by the plaintiff was received by Gurnee. But the testimony on that point is sufficient. It appears that the Denike mortgage bore interest; at least it may be inferred that such was the case from the fact that the executors were required by the will to keep the trust moneys at interest, and from the further fact that the subject matter of the agreement which the plaintiff made with Gurnee and Allison was her share of the interest of that mortgage. It also appears that the mortgages and notes belonging to the trust fund were held by Gurnee alone, and that in May, 1851, during the lifetime of Gurnee, the Denike mortgage was canceled, and was soon afterward replaced by a mortgage executed by other parties. These facts authorized the referee to charge Gurnee with the receipt of the interest accruing upon the Denike mortgage; for if he discharged the mortgage without collecting the interest, he was liable for so much money had and received, the same as if he had in fact received it. (Jackson v. Baker, 6 Cow., 183, note; Floyd v. Day,
3. The next question to be considered relates to the statute of limitations. The referee has reported in favor of the plaintiff for all sums received by Gurnee within ten years next preceding the commencement of the suit. The appellants insist that the six years' limitation applies. That depends upon the fact whether the plaintiff had a remedy at law. The rule is, that where there is a legal and equitable remedy in respect to the same subject matter, the latter is under the control of the same statute bar with the former. (7 Johns. Ch., 90; 7 Paige, 195; S.C. affirmed, 24 Wend., 587;
4. The defendants claim that the referee erred in permitting the plaintiff to testify, in her own behalf, to certain transactions had personally by her with their testator. Those transactions were the agreement already referred to, and a *184
demand of the money claimed in this action. The admission of the testimony was clearly erroneous; but it seems to me equally clear that it was wholly immaterial, and did not prejudice the defendants. The agreement was not essential to the cause of action. The plaintiff established a prima facie case, by showing the terms of the trust; that the Denike mortgage and note were in Gurnee's hands; that he received interest thereon, to which she was entitled; and that a certain portion of the interest had been withheld from her, in each year, since 1849. The agreement was, really, matter of defense, and was so treated by the defendants; and if it was, in any respect, useful to the plaintiff, it was collateral only. Besides, the execution and contents of the agreement were also proved by Charles Rundle. The agreement being collateral evidence, and not under seal, the production of the subscribing witness was unnecessary. (2 Johns., 451;
5. There is no error in the refusal to allow commissions to the defendants. They are not claimed in the answer. If they were, for aught that appears, the will provided that the executors should not be entitled to any compensation in respect to the trust fund in question, or, if compensation was allowed, that it should be charged on the estate generally, and not on the fund.
6. The defendants also insist that the plaintiff is not entitled to costs, for the reason that she claimed more than she has recovered. This is not a proper case for the application of the rule, that costs will not be given to either party where the plaintiff succeeds in a part and fails as to the residue. The cases in which that rule has been applied are, where some distinct and independent claim of the plaintiff has wholly failed (4 Johns. Ch., 79; 9 Paige, 211; 11 id., 299); or where the plaintiff was at fault, as by having produced a mistake in fact, which occasioned the litigation. (6 Seld., 319.) But, in the present case, the plaintiff made but one claim, and she has established it. She has recovered the amount claimed, except as to a small part which is cut off by the statute of limitations. She was not called upon to anticipate that defense, and to concede its validity, when she commenced her suit. If the defendants, when they put in their answer setting up the statute, had also tendered the amount of the claim not covered by the statute, or offered a judgment therefor, the plaintiff would have subjected herself to costs if she had rejected the offer; but, as the case stands, no established rule has been violated by the direction made by the court below, in their discretion, that the plaintiff have costs out of the estate.
The judgment should be affirmed.
Judgment affirmed. *186