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IRVING TRUST CO. v. MCKEEVER

April 29, 1942

IRVING TRUST CO.
v.
McKEEVER



The opinion of the court was delivered by: CAMPBELL

CAMPBELL, District Judge.

This is an action for an accounting and for judgment for such amount as may be shown to be due to plaintiff from the defendant with interest and costs.

This action was instituted by Harriet C. Taylor, a resident of the State of California, against Harriet C. McKeever, a resident of the State of New York.

 During the pendency of this action the original plaintiff departed this life testate, and the Irving Trust Company, as ancillary executor under the last will and testament of Harriet C. Taylor, deceased, was by order of this Court, substituted as plaintiff herein.

 During the year 1929 the said Harriet C. Taylor, plaintiff's decedent, and defendant entered into an agreement whereby defendant agreed that if plaintiff's intestate Harriet C. Taylor would intrust to defendant, cash, stocks and bonds, defendant would invest and reinvest such cash and the proceeds of such stocks and bonds for the account of the said Harriet C. Taylor, for the purpose of increasing the income to be derived by said Harriet C. Taylor therefrom and of making capital gains thereon. Defendant further agreed to return to Harriet C. Taylor, plaintiff's decedent, immediately upon demand all such cash, stocks and bonds delivered to her by said Harriet C. Taylor or the proceeds of such stocks and bonds in which defendant might have reinvested such cash or proceeds.

 Defendant agreed to render such services without compensation.

 The said Harriet C. Taylor delivered to defendant pursuant to said agreement the shares of stock and bonds set forth in a schedule thereof annexed to the complaint in this action and marked "A" having a value in excess of $150,000 and in addition paid to defendant in cash $3,350, on or about May 8, 1930, and $5,200 on or about June 2, 1931. Defendant received and accepted such stocks, bonds and cash under the terms of said agreement and entered upon the performance of her duties thereunder.

 Plaintiff's decedent, Harriet C. Taylor, and plaintiff, have duly demanded that defendant account for, and return to plaintiff, all such cash and such stocks and bonds or the proceeds thereof, and any stocks and bonds in which any of such cash or proceeds may have been invested, first in 1933, but, on many requests in writing of the defendant, for more time in which to account, the said Harriet C. Taylor in writing, extended the time of the defendant to account, first to July 1, 1936, and finally to October 1, 1936, but defendant has failed and neglected so to do, except that defendant has made to the said Harriet C. Taylor certain payments, stated by defendant to be repayments of principal or profits, a schedule of which, with the date of each payment, is annexed to the complaint herein, and marked "B" and has from time to time returned to Harriet C. Taylor certain of the bonds, a schedule of the bonds so returned to said Harriet C. Taylor being attached to the complaint herein, and marked "C".

 Defendant has also, during the period of six years immediately preceding the commencement of this action, repeatedly in writing acknowledged her duty to account and to pay any losses that have been suffered, and that her accounts were being prepared, and that there was something to be accounted for, and also requesting an extension of time to account.

 The defendant failed to account by October 1, 1936, the last day to which the said Harriet C. Taylor extended her time to account, and in fact, has never accounted.

 Defendant contends

 1. That this action is not one in equity, and that the defendant was entitled to a Jury trial.

 2. That the agreement by the defendant to guarantee against any losses was unreasonable.

 3. That the six years statute of limitations, and not the ten years statute, applies, and that the statute had run before the commencement of this action, and that by reason thereof there can be no recovery by the plaintiff in this case.

 Prior to January 30, 1931, the agreement between Harriet C. Taylor and the defendant Harriet C. McKeever was oral and the transactions limited in amount. They were very close friends, Mrs. Taylor being addressed by the defendant in many communications, by the name "Hytie", and the ...


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