129 N.Y.S. 129 | N.Y. App. Div. | 1911
The plaintiff brings this action against Louisa A. Fischlein and Mina E. Harvey, ' She seeks therein to hold them liable individually and as executors of the last will and testament of Louise A. Fischlein, and as trustees under said will. For the purposes of pleading, one sued in a representative capacity is a separate and distinct person from one (although the same one) sued as an individual. • (Leonard v. Pierce, 182 N. Y. 431; Rathbone v. Hooney, 58 id. 463.) For the purposes of a. demurrer, therefore,, we may treat this action, as if persons
As against defendants in their representative capacity as trustees under the will of- Louise A. Fischlein, no cause of action is stated upon any theory. So far as the complaint discloses, Mrs. Fischlein’s ¡will created no trust, appointed no ’ per-. sons as trustees thereunder, and there are no such persons in existence. As against ‘defendants in their individual capacity, no cause of action is stated for damages. They were not parties to the agreement, if there was a. breach thereof, nor have they ever assumed its performance, nor does it appear that, as yet, they have received ¡any property under their mother’s will. We delay for a moment considering the question whether they might not be proper parties under certain circumstances to a suit in equity to consider the action as one against the defendants in their representative capacity as • executors of their
We are inclined to the opinion that the complaint does state facts sufficient to constitute a cause of action in equity upon the ground that the deceased, Louise A. Fischlein, repudiated her trust agreement, and that property which was subject to be impressed with a trust in plaintiff’s behalf in her lifetime is now in the hands of defendants in their representative capacity as executors. But the same difficulty with regard to the jurisdiction of their persons and the subject-matter of the action still exists in connection with such an action which was heretofore suggested in connection with an action at law for damages. While equity, when necessary to prevent a total failure of justice, will in such a case assume jurisdiction so far as the relief to be secured relates to property within its jurisdiction (Bergmann v. Lord, 194 N. Y. 70), no case has been cited to us which goes further than this. Such cases seem to rest upon the doctrine that the ‘ ‘ res, ” the specific thing which is to be affected by the judgment, is here situated and within the jurisdiction of this court. But at the time of her death Louise A. Fischlein was and for some time prior thereto had been a resident of hiew Jersey. The fact that a portion of her personal estate consists of a bond of a resident secured by a mortgage upon real property located in Kings' county in this State does not of itself alter the situation. A debt upon a specialty has its situs where the specialty, in this case the bond itself, is. (Beers v. Shannon, 73 N. Y. 292, 299.) At least, where the creditor’s domicile and the bond also are without the State, the debt evidenced
Jenks, P. J., Thomas, Carr and Woodward, JJ., concurred.
Interlocutory judgment reversed and demurrer of the defend, aint Louisa A. Fischlein sustained, with costs of this appeal, and with leave to plaintiff, within twenty days after the entry of the order herein, to amend her complaint upon payment of the costs of the demurrer and of this appeal.