Mills v. Husson
| Decision Date | 28 November 1893 |
| Citation | 35 N.E. 422,140 N.Y. 99 |
| Parties | MILLS v. HUSSON et al. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from supreme court, general term, first department.
Action by William D. Mills, as administrator d. b. n. of the estate of William Dolsen, deceased, against Joseph Husson, trustee under the assignment for benefit of creditors of Jacob D. Mills, deceased, and others, for an accounting. From a judgment of the general term (18 N. Y. Supp. 519) affirming the special term's judgment of dismissal, plaintiff appeals. Reversed.
Fisher A. Baker, for appellant.
Dennis McMahon, for respondents.
The plaintiff, claiming to represent a creditor of Jacob D. Mills, who made an assignment for the benefit of creditors, and as the assignee of the residuary interest in the assigned estate, sought to compel an accounting by the defendant, as the substituted assignee or trustee under the assignment, and has failed, substantially upon the ground that he did not establish any claim against or interest in the assigned estate. Jacob D. Mills made an assignment for the benefit of creditors to William Dolsen, his father-in-law, June 11, 1855. The assignee was directed to pay certain preferred debts described in the assignment, and among them ‘all indebtedness or sum or sums of money due, or to grow due, owing by said J. D. Mills, or for which he is in any wise liable, to William Dolsen and Charles B. Hart, respectively, and for which they are respectively liable on account of said J. D. Mills.’ Dolsen, the assignee, entered upon the performance of the duties of the trust, collected about $4,000, which he disbursed, except $529.58, and died in January, 1865, leaving an estate of about $30,000. An inventory of the personal estate was filed December 6, 1866, by his daughter, Phebe A. Mills, the wife of the assignor, who had been appointed administratrix, and it contains no claim or obligation against the assignor. In administrator de bonis non of Dolsen's estate, and on March 26, 1868, the defendant and on March 2l, 1868, the defendant was appointed assignee of Mills in place of Dolsen, deceased; and there came to his hands as such assignee, as part of the assigned estate, applicable to the payment of debts, about $4,000, which still remains in his hands, never having been distributed. The plaintiff brought this action to compel the defendant Husson, as substituted assignee, to account and make distribution of the fund in his hands. Such of the preferred creditors as were then living, and the personal representatives of those that had died, or the heirs or next of kin, were also made parties defendant, all of whom, except the assignee, failed to answer. The assignee, by his answer, put in issue many of the material allegations of the complaint, and set up the statute of limitations and other defenses, and denied that the plaintiff, as creditor or transferee of the assignor, had any right, title, or interest in the estate or assets, or any right to call him to account. On the trial the plaintiff produced two written instruments in support of his claim: (1) A promissory note of $10,000, signed by Jacob D. Mills, the assignor, and another person, bearing date March 16, 1854, whereby, 12 months after date, they jointly and severally promised to pay to William Dolsen, the assignee, $10,000, value received, with semiannual interest. The note in its face recites that it was given under the hands and seals of the makers, and was in fact sealed. (2) An instrument under seal, and acknowledged January 12, 1884, executed by Jacob D. Mills, whereby, for considerations expressed, he did grant, assign, and transfer to his son, the plaintiff, as administrator with the will annexed of William Dolsen, deceased, and his successors and assigns, forever, all accounts, dues, debts, claims, rights, and demands, actions and causes of action at law or in equity, which he then held or might thereafter acquire against the defendant, as trustee or otherwise of the assigned estate, and all his right, title and interest in or to the property included in the assignment, with authority to recover the property by action at law or in equity, or otherwise. The courts below have held that, considering the long period of time from the date of the note to its presentation as a claim against the assigned estate, the character of the proof as to the manner in which it came to the plaintiff's possession, and other circumstances, some of which have been referred to, the note was not evidence of a valid claim in favor of the plaintiff against the assignee. It was also held that, as there was no property but money in the hands of the assignee, no interest in that was acquired by the plaintiff under the transfer to him by Jacob D. Mills, the assignor, and the complaint was dismissed.
The fund in the hands of the defendant represented, in part at least, the proceeds of real estate which belonged to the assignor, converted into money by the assignee. Assuming, for the purposes of this appeal, that the plaintiff's claim under the note has been correctly disposed of as a question of fact, his right under the transfer remains to be considered. The sixty-seventh section of the statute concerning uses and trusts, as amended by chapter 545 of the Laws of 1875, reads as follows: The power conferred upon the assignee was to convert the assigned property into money and to distribute the same pro rata among certain persons named. After the lapse of nearly 40 years, the changes produced by death have rendered it difficult and perhaps impossible to execute this power, and in some analogous cases it has been held that, under such circumstances, the trust became extinct. Sharpsteen v. Tillow, 3 Cow. 661;Hetzel v. Barber, 69 N. Y. 13. In this case, however, the trust was clearly discharged by force of the statute at the end of 25 years, and the property reverted to the assignor, and through him to the plaintiff, under the transfer, unless, as the learned counsel for the defendant claims, the statute relates solely to real estate. A construction of the statute which discharges the trust at the end of 25 years as to real estate, but preserves it indefinitely as to personalty, must rest upon the language alone, as no support for that view can be found in considerations based upon reason or justice. The language is that ‘such trust shall be deemed discharged at the end of 25 years from the creation of the same.’ This means the whole trust,...
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In re Russell
...to grants or devises of real property to two or more persons apply to dispositions of personal property as well. Mills v. Husson, 140 N. Y. 99, 35 N. E. 422; In re Kimberly's Estate, supra. It is declared by statute that every estate granted or devised to two or more persons in their own ri......
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...applied to estates or interests of a like character in personal property. 1 Rev. St. p. 773, § 2. See, also, Mills v. Husson, 140 N. Y. 99-104, 35 N. E. 422. If we are correct with reference to this construction of the will, the contention that the whole estate vested in the executors as tr......
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