[2] The complaint in the case at bar seems, judging from the prayer for relief, to be framed in a double aspect, namely: First, to set aside certain transfers of property particularly mentioned; and, second, to obtain a discovery of any property of the judgment debtor or of property held in trust for him by the other defendants. There would seem to be no doubt of the right of a judgment creditor to maintain an action for a discovery and to reach in that action property of the debtor not specifically set forth in the complaint. Le Roy v. Rogers, 3 Paige, 234; Hart v. Albright, 28 Abb. N. C. 74, 18 N. Y. Supp. 718; Scoville v. Shed, 36 Hun, 165. But the complaint in the case at bar contains no allegation of the existence of any property of the judgment debtor, or held in trust for him, except the stock and the two parcels of real property alleged to have been fraudulently transferred. In fact, there is a statement that the judgment debtor has no other property out of which a satisfaction of the judgment can be obtained. See Complaint, par. 24. In other words, except for the prayer for discovery in the demand for relief, the complaint is appropriate to an action to set aside as fraudulent certain distinct. transfers of property, and there is no allegation of fact in the complaint to support any prayer for discovery except with respect to the particular properties and transactions therein set forth. Under the old chancery practice it was necessary that the bill should charge "that the defendant has some property or equitable interests or things in action which ought to be applied to the payment of the complainant's judgment." 2 Barb. Ch. Prac. *164. This charge, however, might, it would seem, be in general terms, without specifying particular property. Id. *165; Bradt v. Kirkpatrick, 7 Paige, 62. And see Le Roy v. Rogers, 3 Paige, 234, and Hart v. Albright, 28 Abb. N. C. 74, 18 N. Y. Supp. 718, for the allegations appropriate to such a discovery. In a case like the present, there is a substantial reason for requiring, in addition to the allegations of particular transfers, a general allegation of other transfers or of the existence of other property, so that the defendants may be advised that other transactions than those specifically alleged are to be inquired into. I cannot, therefore, declare void any transfers other than those set forth in the complaint. [3] There are three transfers of property set forth in the complaint: (1) That of the real property at Floral Park in Nassau county, conveyed first to Petersen and by him conveyed to Mrs. Hillebrand; (2) that of the East Fifth street property, conveyed directly to Mrs. Hillebrand; (3) that of the 88 shares of stock in the Farragut Realty Company, transferred to Petersen. The two properties conveyed to Mrs. Hillebrand are no longer in her legal ownership, as they have been sold in foreclosure, nor does she hold any proceeds thereof. From the evidence, I do not think that she participated in the fraudulent intent of her husband, and hence it would be improper to render a personal judgment against her for the value of these properties. [4] The only remaining questions to be considered are whether the plaintiff is entitled to any relief with respect to the transfer to Petersen of the stock of the Farragut Realty Company, and, if so, to what relief. This stock Petersen still holds, claiming that it was given him as collateral security for certain debts due from Henry Hillebrand or Hillebrand & Kluge. I am of opinion, however, that these claims, or some of them, are not genuine debts. But, assuming them to be genuine, there is a further question to be considered. If Hillebrand was actually indebted to Petersen, even in the full amount which the latter claims, but there was in fact a fraudulent intent to hinder and delay creditors by putting the debtor's property out of his possession and out of the reach of his creditors for his benefit, the transaction was fraudulent notwithstanding the debt. Metcalf v. Moses, 161 N. Y. 587, 56 N. E. 67; Tompkins v. Hunter, 149 N. Y. 117, 121, 43 N. E. 532. In my opinion the transfer of the stock to Petersen was with the intent on the part of Hillebrand, participated in by Petersen, that the stock should be held by the latter for the former to keep it out of reach of the former's creditors. [5] Plaintiff claims to be entitled to a personal judgment for the value of this stock on the ground that it had a value at the time of the transfer and at the time he was maintaining supplementary proceedings on his judgment, but that it now has no value. Ordinarily a trustee of an express trust is not liable for the depreciation of securities in which he has properly invested the trust fund, unless he is chargeable with negligence; but there is abundant reason for applying a different rule to one declared a constructive trustee because of his participation in a wrongful act. In a case like the present, if Peterson had not accepted the transfer of the stock it would have remained in the judgment debtor's hands and could have been reached by supplementary proceedings. The transfer has prevented that and compelled the bringing of this action, during the pendency of which, it is claimed, the stock has depreciated in value. It is equitable that, if the transfer was fraudulent, the plaintiff should recover of the defendant Peterson the value of the stock as of the time when it might have been subjected to the payment of the plaintiff's judgment but for the transfer. This conclusion is supported by Ingersoll v. Weld, 103 App. Div. 554, 564, 93 N. Y. Supp. 291, 298 (First Dept. 1905), where the court, in an action to raise a constructive trust out of presumptive fraud based on the relations of the parties, said: "As the defendant was obligated to restore the property to the true owners upon the death of Mrs. Blanchard, his refusal so to do was a wrongful act upon his part, and the plaintiffs were authorized to resort to any remedy which would protect the property and secure its return. They were therefore authorized to apply for and obtain an injunction pendente lite restraining Weld from disposing of the property, and if during that period, by reason of a decline in the value of the property, loss was entailed, such loss was a direct consequence of the act of the defendant in his refusal to surrender to the true owners the property of which he was possessed." It was held, however, that he could not be required to restore the property and also pay its value, and the judgment was modified so as to be interlocutory and to direct an accounting. See, also, Hosmer v. Tiffany, 124 App. Div. 287, 108 N. Y. Supp. 943. [6] In the case at bar the defendants Hillebrand and Petersen both testified in supplementary proceedings in June, 1911, that the stock was worth $50 a share or five times its par value and on the trial, two years later, that it was worth nothing. Despite the claim. that they made a mistake in their earlier testimony, I think they are properly held bound by their admission. The fraudulent transfer and Petersen's participation therein have thus resulted in damage to the plaintiff to the extent of $4,400, with interest from June, 1911; and for this amount the plaintiff should have judgment against Petersen. Submit decision and judgment accordingly. MOFFETT v. EAMES et al. In re EAMES. (Supreme Court, Special Term, Kings County. September, 1913.) 1. TRUSTS (§ 315*)-COMPENSATION OF TRUSTEE. Where the deed or instrument creating a trust does not fix compensation of the trustee, he will be allowed the same compensation as is allowed by law to executors and guardians. [Ed. Note. For other cases, see Trusts, Cent. Dig. §§ 433-443, 474-479; Dec. Dig. § 315.*] 2. TRUSTS (§ 316*)-COMPENSATION OF Trustee. Where a trustee sold trust property subject to a mortgage and did not charge himself in his account with the gross value but only with the equity received above the mortgage, he cannot be allowed commissions on the gross value. [Ed. Note. For other cases, see Trusts, Cent. Dig. §§ 445-459; Dec. Dig. § 316.*] Suit for specific performance by James Moffett against Harris G. Eames, substituted trustee, and others. Heard on application of Harris G. Eames, substituted trustee, for settlement of his account. Robert E. Moffett, of Brooklyn, for plaintiff. Joseph P. Reilly, of Brooklyn, for trustee. Cornelius S. Pinkney, of New York City, for claimant. BENEDICT, J. These applications have been referred to me by Mr. Justice Crane. They arise out of the proceedings of the applicant Eames, who was appointed by this court to be the substitute of a conventional trustee, deceased, appointed by a certain deed of trust dated March 22, 1912, made between John and Ferdinand Luck and certain judgment creditors of the settlors. The deceased trustee had in his lifetime sold, or otherwise disposed in accordance with the terms of the trust instrument of, all the real property of the trust estate with the exception of one parcel particularly described in the complaint in this action. This last-mentioned parcel he had offered for sale at public vendue, and it had been struck down for the sum of $30,000 to the plaintiff Moffett, who had signed the usual auction terms of sale therefor and had paid a deposit of $3,000 to the auctioneer. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes A dispute having arisen between the settlors and the trustee, the trustee failed and refused to carry out the terms of sale and convey the property, and the purchaser began this suit for specific performance of the contract. Pending the suit the trustee died and Eames was appointed his successor by order of this court dated February 28, 1913. The suit resulted in a decree of specific performance in favor of the plaintiff after a trial on June 26, 1913, and costs were awarded to the plaintiff in the sum of $255.86. Subsequently the substituted trustee conveyed the property to the plaintiff, received the purchase money less the amount of a mortgage, and has filed his account showing his total receipts, which are all the moneys with which he charges himself. These amounted to $15,005.25, and he now has a balance on hand of $890.75, out of which he asks compensation for his own and his attorney's services. He also asks to be discharged as trustee and to have his bond canceled. [1] Since the decision of Chancellor Walworth in Meacham v. Sternes, 9 Paige, 399, it is the settled law in this state that where the deed or instrument creating a trust contains no provision on the subject of compensation to the trustee for his personal services in the execution of the trust, and where there is no agreement on the subject for a different allowance, the trustee, upon the settlement of his accounts, will be allowed the same fixed compensation for his services, by way of commissions, as are allowed by law to executors and guardians, and to be computed in the same manner. "In other words, the court will consider the statute allowance to executors, administrators, and guardians as the compensation tacitly understood and agreed on by the parties to all trusts, of a similar nature, where nothing appears to show a different agreement or understanding on the subject of compensation." In the present case the trust deed is silent on the subject, and I shall therefore allow to the substituted trustee compensation at the rates allowed by law to executors upon the sum which he charges himself with having received and which he already has disbursed or will under this order pay out. [2] I cannot allow him compensation in respect of the total value of the property without regard to the mortgage incumbrance upon it, as was allowed by the General Term in this Department (see Cox v. Schermerhorn, 18 Hun, 16), because the trustee has not charged himself in his account with the gross value but only with the value of the equity received above the mortgage of $16,000, and so under the rule applied in Matter of Dean, 86 N. Y. 398, Matter of Fulton, 30 Hun, 258, he cannot be allowed commissions on the gross value. The commission allowed to him is therefore the sum of $340.05. I allow to him as compensation for the services of his attorney the sum of $275 and $32.70 disbursements, making together the sum of $307.70. See Case v. Beloe, 125 App. Div. 906, 109 N. Y. Supp. 168. The balance then remaining in his hands, viz., $243, I direct to be paid to the plaintiff Moffett on account of the costs and disbursements of this action as taxed. Settle order on notice. (82 Misc. Rep. 186.) MARSH v. CONSUMERS' PARK BREWING CO. et al. 1. WILLS (§§ 614, 634*)-CONSTRUCTION-ESTATE DEVISED-"DESCENDANT." Testator devised his real and personal property to his wife for life in lieu of dower, remainder to his children equally; the descendants of any deceased child to take the share which his deceased parent would take if living. Testator left surviving a widow and four children, one of whom died before the widow, leaving three children who survived her. Held, that such provision created a life estate in the widow, with a vested remainder to testator's children living at the time of his death, which, however, was subject to be divested, as to any child, by his death during the life of the widow, the share of such deceased child passing to augment the shares of the other surviving children, unless the deceased child left descendants surviving at the widow's death, in which case they took the share that their deceased parent would have taken if living, the word "descendant" as used in the will signifying "issue" rather than descendants generally; nor was such construction affected by a provision of the codicil giving to the widow discretionary power to spend so much of the principal of the estate as she might find necessary for the education of testator's children, other necessary expenses of the family, and for her own support. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1393-1416, 14881510; Dec. Dig. §§ 614, 634.* For other definitions, see Words and Phrases, vol. 3, pp. 2014-2017; vol. 8, p. 7635.] 2. POWERS (§ 32*)-EXERCISE-DEEDS. A nonresident testator conferred on his widow, as executrix, a power of sale of his real property, but by a later clause appointed B. as special executor as to all testator's real estate and property situated in New York, conferring on him power to convey such real property, or any part thereof, with the consent of the widow, to be manifested by her signing the Ideed or deeds with B. therefor. B. alone qualified as executor in New York. Held, that a valid exercise of the power of sale required the deed of B. as the donee of the general power in trust, and that a conveyance of certain of testator's real property, made by the testator's widow, in which B. did not join, and not purporting to have been executed by the widow in her capacity as executrix, passed no title. [Ed. Note. For other cases, see Powers, Cent. Dig. §§ 104-109, 128-132; Dec. Dig. § 32.*] Action for partition of real property by Helen E. Marsh against. the Consumers' Park Brewing Company and others. Judgment for complainant. Paul Bonynge, of New York City, for plaintiff. Edward M. Perry, of Brooklyn, and Edward E. Sprague, of New York City, for defendant Consumers' Park Brewing Co. Louis Bevier and Henry Pegram, both of New York City, for defendants Cameron and Kinsey. BENEDICT, J. This action involves the construction of the last will of Leonard Marsh, a former owner of the premises sought to be partitioned, who died seised thereof at Burlington, Vt., leaving a last will bearing date the 3d day of October, 1868, and a codicil thereto bearing date the 28th day of October, 1868, which, after For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |