Appeal from Special Term, Kings County.
Suit by Stephen W. Devoe against Charles F. Lutz and others. From a judgment overruling demurrers to defenses in the answer, plaintiff appeals. Reversed, and demurrer sustained.
[117 N.Y.S. 340] Melville J. France, for appellant.
I. N. Sievwright, for respondents.
Argued before WOODWARD, JENKS, GAYNOR, BURR, and RICH, JJ.
This appeal is from an interlocutory judgment overruling plaintiff's demurrer to two defenses contained in the answer of the defendant Lutz, one of which pleads the six and the other the ten year statute of limitations. Upon the argument the sufficiency of the complaint was attacked, and it therefore becomes necessary for us in the first instance to determine whether it states facts sufficient to constitute a cause of action. Baxter v. McDonnell, 154 N.Y. 432, 48 N.E. 816; Lewis v. Cook, 150 N.Y. 163, 44 N.E. 778; People v. Booth, 32 N.Y. 397.
[117 N.Y.S. 341] The plaintiff alleges that his wife, Amanda M. Devoe, died May 12, 1907, leaving a last will and testament, which has been duly proved. By this will she gives to her executor:
" One bond and mortgage of the amount of four thousand dollars on property on Lee avenue, in trust nevertheless to and for the following uses and purposes: (1) To pay to my husband Stephen W. Devoe, the sum of not exceeding ten dollars per week out of the interest and principal of said bond and mortgage as long as he may live."
The residue of her estate she gives to others. Plaintiff further alleges that prior to their marriage his wife had no separate property, either real or personal; that during the time of their married life she inherited no property, real or personal, and was not engaged in any business; that any money or other property she had was derived from him; and that all the property held by her in her name at the time of her death belonged to him, or was derived from the income and profits of his property. He further alleges that at the time of her death there was personal property held by and in her name, consisting of about $26,000, deposited in 10 different savings banks, together with a bond and mortgage for $4,000 covering premises known as 212 Lee avenue, in the borough of Brooklyn. He also alleges that during the period of their married life he was accustomed to give and did give to his wife all his earnings and income from every source, to apply the same to the expenses of maintaining their home and of their living, and to keep and hold the remainder and surplus for his benefit and use, and that up to the time of her decease his wife did receive and hold said surplus and remainder for his benefit and use, and as trustee for him, and invested and deposited the same for and on his behalf, but in her name. He further alleges that the said property is now in the possession of the defendant Lutz as executor of his wife, who is about to distribute the same as personal estate which belonged to her in accordance with the terms of her will.
The arrangement between the plaintiff and his wife, set forth in the complaint, constituted a good trust of personal property. Where no rights of creditors or third persons, standing in any other or better position than the parties to the trust agreement, are concerned, such a trust may be created for any purpose and its terms enforced. To constitute such a trust, there must be (a) a designated beneficiary; (b) a designated trustee; (c) property sufficiently designated or identified to enable title thereto to pass to the trustee; (d) actual delivery of the property to the trustee with the intention of passing the legal title thereto. Brown v. Spohr, 180 N.Y. 201, 73 N.E. 14.It is not necessary that there should be an explicit declaration of trust, if the attending circumstances disclose that a trust was to be created, and its purpose and object. Beaver v. Beaver, 117 N.Y. 421, 22 N.E. 940,6 L.R.A. 403,15 Am.St.Rep. 531; Young v. Young, 80 N.Y. 422, 438,36 Am. Rep. 634.All of these elements are found to here exist. So much of the trust agreement as related to the joint support of the plaintiff and his wife was terminated by the death of the wife. As to the residue over and above what was needed for their joint support, the trust being to hold for the benefit and use of the plaintiff, and the property having been received by the trustee for that purpose, [117 N.Y.S. 342] it became the duty of such trustee to expend or pay over all or any portion of such residue, whenever required to do so by the beneficiary thereof. No period being fixed as to the duration of this portion of the trust, it could be terminated at any time. Having elected to terminate it, the plaintiff could call upon any one who had the corpus of the trust estate in his possession as a representative of the deceased trustee to turn it over to him. The sufficiency of the complaint has not been successfully assailed, and it states a good cause of action.
It remains to consider whether the defenses demurred to are equally sufficient. When an answer contains a statement of new matter constituting a defense (Code Civ. Proc. § 500), if insufficient in law upon its face, it may be attacked by demurrer (Code Civ. Proc. § 494). A plea of the statute of limitations which operates as a bar to the recovery must be specially pleaded, and comes within the statutory definition of new matter. Code Civ. Proc. § 413; Dezengremel v. Dezengremel, 24 Hun, 457.The statute of limitations does not begin to run until either the trust is terminated or the trustee does some act, in open and notorious hostility to the trust, indicating a desire and purpose upon the part of such trustee to repudiate its obligations and assert an individual right to the property constituting the corpus of the estate. Mabie v. Bailey, 95 N.Y. 206; Miner v. Beekman, 50 N.Y. 337.The paragraphs of the answer setting up as separate defenses first the six and then the ten year statute of limitations contain no allegation showing the date of the termination of the trust. Resort may therefore be had to the allegations of the complaint, since, when new matter is separately pleaded as an affirmative defense, the paragraph of the answer containing such defense must be complete in itself, and allegations in the complaint not therein denied are deemed admitted. Douglass v. Phoenix Ins. Co., 138 N.Y. 209, 33 N.E. 938,20 L.R.A. 118,34 Am.St.Rep. 448.
The complaint shows that the trustee, the wife of the plaintiff, recognized the obligation of the trust and continued to discharge the duties thereof up to the date of her death on the 12th day of May, 1907. The making of a will attempting to dispose of the trust fund as the individual property of the testator would not of itself be deemed a completed act of hostility to the trust, since such will was of no effect during the lifetime of the testator. But, if otherwise, such will was not made until the 26th day of September, 1904. The mere deposit of the trust funds in her own name in various savings banks would not, of itself, constitute a repudiation of her trust obligations, since such act would be entirely consistent with the fulfillment thereof.Mabie v. Bailey, supra.
It is not the law that an answer which contains a plea of the statute of limitations in this form can never be assailed by demurrer as insufficient in law. If this were so, an easy method is discovered of delaying the entry of judgment in cases where no defense exists. If a suit is brought on the 1st day of April, 1909, upon a note dated January 1, 1909, payable two months after date, and the complaint correctly alleges these facts, an answer which avers that the " cause of action did not accrue within six years prior to the commencement [117 N.Y.S. 343] thereof" can only be gotten rid of by putting the case on the calendar and trying it when reached. We should not adopt such a conclusion unless forced to do so. I think that it is not the fact " that the defense goes to the substance of the cause of action." It goes only to the remedy. Bliss on Code Pleading, § 355; People v. Freeman, 110 A.D. 608,97 N.Y.Supp. 343.It is true that the author of the work on Pleading does express his approval of the old common-law form of plea here adopted; but no case is cited in support of it except Bell v. Yates, 33 Barb. 628. So far as I have been able to find, this case, decided in 1861, has never since been cited. An examination of the opinion shows an argument upon the part of the court, which impresses me as a labored one, to the effect that, because the Code uses the language " a statement of new matter constituting a defense," etc. (Code Civ. Proc. § 500; Code Proc. § 149), this meant something different from " facts" constituting such defense. I think now that no one will contend that the word " statement" in the statute which would be broad enough to include, not only probative facts, but conclusions both of fact and law, has any different meaning than if it had said a statement of facts in the nature of new matter. In any event, all that was said upon the subject in Bell v. Yates, supra, was obiter; for the court proceeds to consider when, upon the facts as stated in the complaint, the cause of action did accrue, and concludes that the statute had not run, and decides the case upon that ground.
It seems to me that, when this section of the Code is read in the light of the rule that each separate defense must be complete in itself, it is clear that if the plea of the statute of limitations is based upon the claim that the cause of action accrued at any other time than that indicated in the complaint, because the facts are otherwise than as therein indicated, those facts must be alleged to constitute a complete defense. Otherwise the facts must be deemed to be as stated in the complaint, and it then becomes a question of law when the cause of action accrued. That was the method adopted in the Bell Case, supra. It does not seem to me that every defense comprising new matter is in the nature of a confession and avoidance. Some of the facts stated in the complaint may be true, some may be false, and there may be facts not therein alleged which are " new matter." The facts stated truly in the complaint, with these new facts, may constitute a complete defense, yet there may not be a complete confession, because other facts stated in the complaint are not true. Under the rule laid down in Douglass v. Phoenix Insurance Co., supra, to make the defense complete in itself, the true facts in the complaint must be grouped with the new facts, and that which is not true in the complaint must be denied. However that may be, the defendants here expressly aver that, tested by the facts stated in the ...