#### Horace Belden, Plaintiff, *v.*George Wilkinson et al., Trustees of Frank Wilkinson, Deceased, Defendants.

(Supreme Court, New York Special Term,

January, 1901.)

1. Alienage — Foreign Statute of Frauds must foe pleaded — Demurrer.

Where a plaintiff sues testamentary trustees of a decedent for an unpaid balance alleged to be due him on an oral contract made by him with the decedent for the sale of land located in another State, allegations of the trustees, to the effect that their testator was, as the plaintiff knew, disqualified by alienage from holding the land and that consequently he organized a corporation to hold it, and that the payments he had made the plaintiff on account were in fact for the land and on behalf of the corporation, present no defense.

The State alone can question the right of an alien to hold land.

A foreign Statute of Frauds must be pleaded to be made available.

2. Attachment — Property of executors cannot foe attached as that of trustees.

Where a plaintiff sues the defendants as trustees, he cannot attach a fund, in the hands of third parties in this State, which belongs to the defendants as executors only, and a defense setting up these facts is not demurrable.

3. Jurisdiction in rem, when not acquired.

Where nonresident trustees of a deceased alien, who have as such no property in this State, are served by publication only and do not appear generally, a defense denying jurisdiction is not demurrable as there is no jurisdiction *in rem.*

*6604. When foreign Statute of Limitations may be pleaded.

Where a nonresident brings an action against other nonresidents upon a cause of action which does not involve the title to or possession of real property in this State, the defendants may, under Code C. P., § 390, plead in bar the Statute of Limitations of the country of their residence.

Demurrers by plaintiff to separate affirmative defenses pleaded by defendants.

Swayne *&*Swayne, for plaintiff.

Jas. Dunne,- for defendants.

McAdam, J.

The plaintiff, by his amended complaint, sues the defendants as trustees under the last will and testament of Frank Wilkinson, deceased, for an unpaid balance on an oral contract alleged to have been made with the decedent for the sale of certain land in Connecticut. In their amended answer the defendants, after putting in issue the material allegations of the amended complaint, set np four affirmative defenses, and the plaintiff demurs to each defense on the ground that it is insufficient in law upon the face thereof.

It must be assumed that the new matter constituting each defense is pleaded as a complete defense, and it must be tested as such. Thompson v. Halbert, 109 N. Y. 329.

The first affirmative defense is a plea that the decedent was an alien of the Hnited States, and a resident, householder and manufacturer at Beeston, in the county of Ffottinghany England; that, at the date of the contract in question, as the plaintiff well knew, the decedent could not, under the laws of Connecticut, acquire good title as such alien to laud situate in that State; by reason whereof, as plaintiff well knew, the decedent, in behalf of himself and others, caused to be organized a corporation under the laws of Kentucky, with a view of said company acquiring, together with other real estate in Connecticut, the property mentioned in the complaint, and, with that view, and for that purpose, and no other, the sums mentioned in the complaint as having been paid by the decedent to the plaintiff were paid to him by said corporation in connection with the acquisition of said property by and the deeding of same to said company.

*661It is difficult to conceive how this plea could be a complete defense. The State alone, according to the common-law rule, could question the right of the alien to hold the land. Munro v. Merchant, 28 N. Y. 9; Wadsworth v. Wadsworth, 12 id. 376; People v. Conklin, 2 Hill, 67; Scott v. Thorpe, 1 Edw. Ch. 512; Governeur’s Heirs v. Robertson, 11 Wheat. 332; Manuel v. Wulff, 152 U. S. 505. And the facts that the property in question was, with the knowledge of the plaintiff, to be acquired by a corporation, and that the corporation made payments on account of the land, do not defeat the plaintiff’s right of action for the breach of the contract, the making of which with the decedent is not questioned by the plea contained in the first affirmative defense. The defendants do not plead the Statute of Frauds of the State of Connecticut, the place where the contract was made and land situated, and yet, in their brief, claim the benefit of such a statute. To make this defense available, it ought to have been specially pleaded. Miller v. Wilson, 146 Ill. 523; Siegel v. Robinson, 56 Penn. St. 20; Abell v. Douglass, 4 Den. 305. The demurrer to the first defense is, therefore, sustained.

The second affirmative defense alleges that a certain fund in the hands of third parties, which has been attached by the plaintiff in this action, was and is held by said third parties as the property of these defendants as executors of the decedent, and not otherwise.

Executors as such may hold money of their testator separate and distinct from property held by them as trustees. *“*The office of an executor, and that of a testamentary trustee, are essentially distinct, although not infrequently the same person is appointed both executor and trustee. In the former capacity, it is his duty to collect the property and pay the debts and legacies; in the latter, he is called upon to invest and manage a particular fund or trust estate, in accordance with the directions of the will. * -x- * Where the will appoints a person executor, and then imposes upon him, as such, the execution of a trust, then the appointee, by proving the will and qualifying as executor, will be deemed to have accepted the trust; and he is accountable in each capacity separately. It is as if two different persons had been appointed to the two offices.” Redf. Surr. (5th ed.) 269; and see Hillman v. Stephens, 16 N. Y. 278; Town of Bridgewater v. Town of Brookfield, 3 Cow. 299.

*662Upon his application for an attachment the plaintiff sued the defendants, as executors and trustees of the decedent. Since then he has amended his complaint, and proceeds against the defendants in their capacity as trustees only. Assuming that the facts set up in the defense are true, the defense is sustainable because it shows that jurisdiction *in rem*cannot be invoked against the defendants as trustees; and the action is not maintainable because of the want of such jurisdiction. The fact that the plaintiff alleges in his amended complaint that the defendants turned over, assigned, transferred and converted into the hands of themselves as trustees of the decedent, all of the property, real and personal, of decedent, does not help the demurrer, for the defendants deny that allegation.

In their third affirmative defense the defendants plead their non-residence and alienage; that the summons and complaint in the action were not served on them or either of them; that the summons and complaint were served by publication and mailing; that none of the defendants has any property in this State except the sum attached, which sum belongs to them as executors of decedent; and that, therefore, the court has no jurisdiction over the persons of defendants.

If the defendants, as trustees, the capacity in which they are sued, have no property in this State, the plaintiff cannot invoke jurisdiction *in rem*upon the argument of this demurrer. The defendants served no notice of general appearance in the action. The case is, therefore, distinguishable from Reed v. Chilson, 61 Hun, 623; 40 N. Y. St. Repr. 960; affd. 142 N. Y. 152, and comes within the decision of Hamburger v. Baker, 35 Hun, 455, in which it was held that the service of an answer by the attorney of a non-resident, pleading want of jurisdiction, could not be regarded as a general appearance of the defendant rendering him amenable to the jurisdiction of the court. See also Landers v. Staten Island R. R. Co., 53 N. Y. 460. The demurrer to the third defense must, therefore, be overruled.

It may appear at the trial that the court has complete jurisdiction, as was decided upon the demurrer to the complaint (Belden v. Wilkinson, 44 App. Div. 420), but such conclusion is inconsistent with the admissions made by the plaintiff’s demurrers. Demurrers are generally dangerous, and particularly so in cases of this character.

*663For the fourth affirmative defense the answer pleads the non-residence of the decedent and the defendants, and their residence in the Kingdom of Great Britain and Ireland; that, by the British statute, such an action as that in suit must be brought within six years after the cause of action accrues, and that the cause •of action alleged in the amended complaint did not accrue within six years prior to the commencerhent of the suit.

In his complaint the plaintiff alleges the payment of interest by the decedent on the debt for which suit is brought down to September, 1894. This allegation is denied by the answer.

The Code (§ 390) provides that *“*Where a cause of action, which does not involve the title to or possession of real property within the State, accrues against a person, who is not then a resident of the State, an action cannot be brought thereon in a court of the State, against him or his personal representatives, after the expiration of the time, limited, by the laws of his residence, for bringing a like action, except by a resident of the State,” etc.

Before the enactment of this statute, a foreign Statute of Limitations could not be pleaded in bar of an action brought in this State; the *lew fori*governed in such a case. Miller v. Brenham, 68 N. Y. 83. It has been held that the statute extends to nonresident debtors the protection of the foreign Statute of Limitations in cases where it has run and effectually discharged the debt according to the laws of the debtor’s residence. Howe v. Welch, 3 How. N. S. 465; 17 Abb. (N. C.) 397; affd. 3 N. Y. St. Repr. 576; Taylor v. Syme, 17 App. Div. 517, reversed on other grounds, 162 N. Y. 513. As the parties are non-residents, and the action does not involve the title to or possession of real property within the State, the demurrer to this defense must, therefore, be overruled.

Demurrer to first defense sustained; demurrers to second, third and fourth defenses overruled, with leave to the plaintiff to withdraw said demurrers as to said three defenses if he elects to do so.

Demurrer to first defense sustained, demurrers to second, third and fourth defenses overruled, with leave to plaintiff to withdraw said demurrers to said three defenses if he elects to do so.