APPEAL by the defendant, Louisa A. Fischlein, individually and as executrix and trustee, etc., from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 1st day of December, 1910, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the said defendant's demurrer to the complaint.
Helen K. Hoy, for the appellant.
E. W. Cushing, for the respondent.
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
different from the individuals had been named as executors, and persons different from either had been named as trustees. Plaintiff's right to recover depends upon the effect to be given to the agreement upon the part of her mother, Louise A. Fischlein, who was also the mother of the defendants herein, that, if plaintiff would convey to her such interest as she had in the real estate devised to her by her father's will, which consisted of one-sixth part thereof subject to the mother's life estate therein, she, the mother, would 'preserve and retain in trust the plaintiff's one-sixth (1/6) interest in the estate, given to her by the last will and testament of her father, using only the income thereof for life, and upon her death would give to the plaintiff the said one-sixth interest in her father's estate, which interest was and is worth approximately three thousand ($3,000.00) dollars.' It is not entirely clear from the complaint whether plaintiff seeks to recover damages for breach of this agreement upon her mother's part, whether she proceeds upon the theory that her mother recognized the trust while living, and she now seeks to enforce final execution thereof by defendants as successors to such trust, or whether she proceeds upon the theory that the agreement was repudiated by her mother, and seeks to impress upon the property left by her, in whosesoever hands it may be, a trust resulting from such agreement enforcible as against them. The prayer for relief is broad enough to include them all.
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 persons 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
mother's will. It may not be maintained against them as an action at law for damages for a broken agreement upon their testator's part, because this court has no jurisdiction of their persons. They are foreign executors solely. ( Flandrow v. Hammond, 13 A.D. 325; McGrath v. Weiller, 98 id. 291.) If the action be deemed one in furtherance of the trust and to compel its final execution, then, passing by other objections, the trust being, so far as the complaint discloses, entirely one of personalty, upon the death of Mrs. Fischlein the further execution of the trust would not devolve upon her executors, but would vest in the Supreme Court until a new trustee was appointed. (Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § 20.)
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 New 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
by the bond, even though the debtor be a resident here, has no situs within this State. (Matter of Bronson,150 N.Y. 1, 8; Matter of Whiting, Id. 27; Matter of Fearing, 200 id. 340.) It does not appear affirmatively that the bond is within this State. Inferentially it appears that it is in New Jersey. The fact that this bond is secured by a mortgage upon real property here located does not alter the situation. The mortgage creates no estate in the land, and is simply a security for the debt represented by the bond. (1 Jones Mort. [ 6th ed.] § 44; Barson v. Mulligan,191 N.Y. 306; Hubbell v. Moulson, 53 id. 225, 227, and cases there cited.) Stone v. Scripture (4 Lans. 186), relied upon by the learned justice at Special Term, is not an authority to the contrary. In that case it appeared that an administrator had been appointed in the State of the debtor's domicile prior to the appointment of the administrator in the domicile of decedent. The language in the opinion in that case as to the situs of the bond and mortgage was not necessary to its decision, and should not be extended to cases not resting upon similar facts, if indeed it is entirely accurate under any circumstances. Neither was this case cited with approval in Maas v. German Savings Bank (73 A.D. 524, 530), as the learned justice at Special Term indicates. On the contrary, its authority was questioned, and the decision in the Maas case was opposed to the doctrine contained in the case of Stone v. Scripture. (See decision in Maas v. German Savings Bank,36 Misc. 154.) If the court had jurisdiction in an equity action, such as is hereinbefore referred to, of the subject-matter of the action and the persons of the foreign executors, it might be that the individual defendants would be proper parties to such an action as the persons who might ...