#### Mary T. Mulvey, Plaintiff, *v.*Charles H. Reilly, as Sole Surviving Executor and Trustee, etc., of Thomas O’Reilly, Deceased, et al., Defendants.

(Supreme Court, New York Special Term,

March, 1900.)

Trustee — Foreclosure, by residuary legatee, of a mortgage for the benefit of an annuitant, where the trustee refused to move and had not paid the annuity.

Where a testamentary trustee' fails for many years to pay an annuity charged by a will upon a mortgage in his hands given by his brother to the testator, allows taxes, water rates and assessments to accumulate upon the premises, and declines to foreclose the mortgage upon the ground that it is without consideration, the sole residuary legatee of the testator (the annuitant consenting) has sufficient title and interest to foreclose, and this without first demanding of the trustee that he do so, as such a demand would probably have been an empty formality, and, further, because it is not advisable that such a trustee should foreclose and obtain possession of the fund.

Action to foreclose a mortgage.

Fernando Solinger, for plaintiff.

Henry Daily, for defendants Reilly and others. j

William C. Wilson, for defendant Mary Gray.

*11Leventritt, J.

The defendants rely on two grounds to defeat the foreclosure of the mortgage in suit: *First,*that there was want of consideration; and *secondly*that the plaintiff was not the proper party to institute the action. On the 16th day of February, 1888, Thomas O’Reilly, the father of the plaintiff, purchased for the sum of $7,275 a piece of property and took a deed in the name •of his son, the defendant Thomas J. Reilly, who, at the same time, executed and delivered to him a mortgage thereon in the sum of $7,000, maturing in five years, with interest at six per cent, payable semi-annually. That mortgage is the subject of this litigation. Thomas O’Reilly, the mortgagee, died on the 11th day of December, 1889, leaving a last will and testament, made before the purchase of the property, and a codicil made after, by which he nominated his son, the defendant Charles H. Reilly, and his daughter, Anna H. de Eoielle, as his executors. Before the commencement •of this action Anna H. de Eoielle died, leaving the defendant Charles H. Reilly as the sole surviving executor. The first clause •of the codicil, after directing that the sum of $15 should be paid by the executors monthly to his niece, the defendant Mary Gray, •during her natural life, and that a suitable burial should be provided on her decease, continues: “ And for the purpose of carrying out these provisions for the benefit of my said niece I do hereby charge the same upon the bond and mortgage for $7,000 heretofore made to me by Thomas J. Reilly, * * * and I do hereby give, devise and bequeath to my executors the said bond and mortgage, as trustees, for the uses and purposes aforesaid.” The concluding clause of the codicil reads: “All the rest, residue and remainder of my estate, both real and personal, I give, devise and bequeath to my said daughter Mary T. Reilly, to have and to hold the same to her use and benefit forever.” Mary T. Reilly is the plaintiff in this action, having become Mary T. Mulvey by marriage. The mortgage in question is in the possession of Charles H. Reilly, as executor and trustee. It was not foreclosed at maturity; no effort has been made to collect any interest; no taxes have been paid for a period of ten years; there has been for four years default in water rates, and an assessment of several years’ ■standing remains unpaid; in fact, nothing has been done to enforce any condition of the mortgage. The annuitant, Mary Gray, has, in the decade since her uncle’s decease, received in all only the sum of $145. Although here made a defendant, she joins with *12the plaintiff, the residuary legatee, in praying a foreclosure, asking merely that her rights he recognized in the disposition of the proceeds. The plaintiff, prior to the commencement of this action, instituted proceedings in the Surrogate’s Court for the removal of the defendant Charles H. Reilly, as executor and trustee, assigning as a ground, among others, his failure to bring an action to foreclose the mortgage in question. Answering the petition, the defendant Charles H. Reilly set up as a defense that the bond and mortgage were without consideration and were never intended as binding instruments. That defense was again pleaded in this action, both by the executor and his brother, the mortgagor. It has, however, not been sustained. The uncertain testimony of the mortgagor, and of the alleged admissions of the mortgagee intimating that the latter intended to give the property free and dear in return for services performed by the mortgagor, is in itself inconclusive and, to my mind, completely overborne by the recitals in the mortgage and the directions in the codicil, by which it clearly appears that the mortgagee regarded it as an enforceable lien. Nor is there merit in the second defense. The contention is that only the defendant Charles -H. Reilly in his representative capacity could maintain foreclosure proceedings, and that on his default the plaintiff’s remedy was to apply for his removal and the substitution of a new trustee, upon whom would devolve the right and duty to bring- the action; and further, that in no event, even conceding that the plaintiff could maintain the action, would her right accrue until demand made upon defendant Charles H. Reilly and refusal by him. Three persons only have any interest in this mortgage, the executor and trustee in his representative capacity, the annuitant, and the plaintiff as residuary legatee. Primarily, the right to bring the action is in the executor (Newton v. Stanley, 28 N. Y. 61; Robinson v. Brower, 32 N. Y. St. Repr. 42), but the rule has long been recognized that where the personal representative, upon a proper application for that purpose, refuses to proceed to foreclose the mortgage for the benefit of the legatees who are interested therein, they may themselves bring the action upon 'showing their respective rights in the mortgage. Lawrence v. Lawrence, 3 Barb. Ch. 71, 75. The plaintiff has, I think, such an interest as will entitle her, upoh the executor’s default, to bring the suit. Her interest is a vested one. Even conceding the very improbable hypothesis advanced by the defendant Charles H. *13Reilly that the monthly payments and the burial expenses might consume principal as well as income, so that the residuary legatee would ultimately receive nothing, the character of the estate in her is not altered. Mere uncertainty of enjoyment will not render the estate a contingent one. The gift to the plaintiff is immediate, not future. She has a present capacity to take, and should the annuitant die to-morrow the trust estate in the executor would forthwith terminate and the title to the mortgage be in her. There is no uncertainty as to the vesting of the right to the estate, the time of enjoyment is merely deferred. Its value may prove to be large or small; but it is the present, fixed, certain right to that value, however it may eventuate, that determines the estate as vested. Fearne Cont. Rem., § 216; Tied. Real Prop., § 401; Everitt v. Everitt, 29 N. Y. 67; Goebel v. Wolf, 113 id. 405, 412. Her interest, then, being vested, she would have been a necessary party to the foreclosure action had it been instituted by the executor. Story Eq. Pl., § 144; Townshend v. Frommer, 125 N. Y. 446, 468. Leaving the executor out of consideration, only she and the annuitant could bring the action to foreclose, as only their acquittances to the mortgagor would be required to discharge the mortgage debt. Thomas Mort., § 719. Being a necessary party defendant, she would be a proper party plaintiff upon the executor’s refusal to proceed, or under circumstances tantamount to a refusal. I am of the opinion that such circumstances exist in this case. The attitude of the executor both before the surrogate and before me, where he acted in concert with the mortgagor in the latter’s efforts to defeat the security, clearly indicates, not only the futility of a demand upon him to foreclose, but also the inadvisability of intrusting the conservation of this asset of the trust estate to him. Although retaining possession of the mortgage, he has, by his failure to enforce payment of either principal or interest and by suffering the accumulation of taxes, assessments and water rates, treated it as invalid. The effect of his testimony before me was that he did not at any time contemplate foreclosure. Under such circumstances equity will .not require the empty formality of a demand as a preliminary to an accrual of a right of action in the plaintiff. Bate v. Graham, 11 N. Y. 237; Harvey v. McDonnell, 113 id. 526; Excelsior Pebble Phosphate Co. v. Brown, 74 Fed. Repr. 321. The pendency of proceedings before the surrogate for the removal of the executor and trustee is no bar to this *14action, and does not affect the plaintiff’s right to maintain it. Matter of Moulton, 32 N. Y. St. Repr. 631, 640. It is to be observed that decreeing foreclosure and directing that the proceeds be-brought into court and thence deposited with some reliable trust-company subject to the trust contained in the will of Thomas-O’Reilly and until the further order of the court will protect the rights of all parties concerned. Both the plaintiff and the defendant Mary Gray, the annuitant, pray for this disposition of the cause, and the trustee, having been made a party defendant, is fully protected. The trust itself is being preserved, not extinguished; and the waste of its *corpus*terminated. " There should be-judgment for the plaintiff.

Judgment for plaintiff.