96 N.Y.S. 309 | N.Y. App. Div. | 1905
We have to deal only with the first cause of action alleged, as it was conceded on the argument that the dismissal of the complaint as to the second cause of action was proper. By the will of Louise Potm mér, who died March 12, 1897, her residuary estate was devised in .express terms to three trustees in trust to invest and keep invested, to collect the income, -issues and profits thereof, and to. apply the same . to the use of four children in. equal proportions until they should respectively attain the age: of twenty-five years. Carl Coenen and the plaintiffs Carl Yohmann and Hermann Mecke were appointed executors of said will and trustees of the. trusts therein created, and . duly qualified both as executors and trustees. On the 15th day of February, 1899, said Coenen, Yohmann and Mecke loaned the defendant Michel from said residuary estate the sum of $6,500, and
It is conceded that if the bond and mortgage were held by Cbenen, Vohmann and Mecke as trustees the satisfaction and discharge thereof before due required the united action of the three trustees, and this is so clearly the correct rulé as to require no discussion, but it is urged on behalf of the respondents in support of the-judgment that they held the bond and mortgage as executors and riot' simply as trustees, and that, therefore, the act of one in accepting payment and executing á discharge was valid, and that in any event the plaintiffs are estopped from now asserting ■ the invalidity of the discharge- by reason of their failure to: inform the defendants Michel and Horrmann of,the forgery immediately upon, the discovery thereof. 'The decision of the learned court at Special Term, appears to have been rested principally upon the claim of estoppel, but it is very difficult to find, in-this record all the elements, essential to establish an estoppel in pais even though we overlook the fact that such estoppel is asserted against trustees in their representative Capacity. The defendants do not. assert that said C’oehen had any property from -which they could have recovered any portion of the amount stolen by him, and' it is entirely probable that had -they been informed immediately of the facts they would have rested upon the assertion now made that the satisfaction was valid, but it is claimed that the right to resort to the criminal law was a .valuable right the loss of which -even without any other damage was sufficient injury to uphold the claim of an estoppel, and as there are authorities to that .effect,’ we may assume, without, deciding, that such is the law, and still the evidence fails to establish an estoppel. It is not claimed, that the defendants were actually misled or that they did anything, or failed to do anything because of actual reliance upon any conduct of the plaintiffs. . They possibly might have- had Cbenen arrested had they been informed promptly of the forgery, but their failure to have him arrested was not
■ The respondents rely upon the fact that the executors had never accounted or been discharged as such and that there-never had been any formal' transfer of the estate from themselves as’ executors to • themselves as trustees. The act itself, when viewed in the light' afforded by the will,, leaves .no room for doubt as to its character.' The money Was paid by the defendant Michel more than three years :after the death of the testatrix. As expressly found by the court at Special Term, this money was a portion of the residuary estate;. it had been invested by said Ooenen, Vohmann and Meche, and the investment in bond and mortgage of a residuary estate devised to trustees is- not an executorial act. . Where the same persons are appointed executors and trustees and their duties in both capacities coexist and the will does not sharply define the limitations of each,it may be difficult always to determine whether a precise act is that, of an executor or trustee, although even -then it would seem that the character of the act would ordinarily determine whether it was executorial. But it is unnecessary to review the authorities bearing upon the .question under the conditions referred to for the , reason that the will in the case at bar clearly defines the act in qüés•tion as that of a trustee.. The residuary estate, was devised, not to executors and trustées, but to her trustees in trust; the testatrix carefully limited the investment, and management of her-residuary estate to trustees and appointed the persons named executors of her will and trustees of the trust therein created. The defendant. Michel was not misled as to, the representative character of the persons with whom he was dealing. He knew, or was .chargeable with knowledge, that by the terms- of the will'the investment of the residuary estate was the act of trustees-; he knew, or was presumed to .know,- that a valid discharge of the mortgage before it was due could only be given by the three trustees. He in fact recognized the . character of the persons with' whom he was dealing because-'the checks in payment of the mortgage were payable to Ooenen as trustee. As the result of Coenen’s forgery the defendant Michel supposed that, he was getting a discharge of the mortgage executed. by
The judgment, so far as it awards costs to the defendants and dismisses the complaint respecting the first cause of action alleged, must be reversed- and a new trial granted, costs to abide the final award of costs.
Hirsohbebg, P. J., Bartlett, Woodward and Hooker, JJ., concurred.
Judgment, so far as it awards costs to the defendants and dismisses the complaint respecting the first cause of action, reversed and new trial granted, costs to abide the final award of costs.