#### Enos Lee, Exr., etc., Resp’t, *v.*Amy Horton, Admx., Appl’t.1

*(Court of Appeals,*

*Filed March*1, 1887.)

1. Law — Knowledge op, peesumed.

Parties are always chargeable witb knowledge of tbe Law.

2. Tiutstees — Cast not by agreement divert funds from the purposes: OF THE TRUST.

Trustees of funds can not by an agreement made witb a beneficiary dispose of tbein in contravention of tbe terms of the trust.

8. Trust funds — Remain such in the hands of ant person with knowledge.

Trust funds will be impressed witb that character in tbe bands of any one witb knowledge of tbe facts.

Appeal from a judgment of general term, second department, affirming a judgment of the trial court in favor of the plaintiff. The facts are sufficiently stated in opinion.

*Clifford A. H. Bartlett,*for appl’t; *Calvin B. Frost,*for resp’t.

1

 Affirming 35 Hun, 668, *mem.*

Ruger, Ch. J.

This action was brought against the administrator of the estate of William J. Horton, to recover money claimed to be due under circumstances related in two written instruments reading substantially alike except as to amount, and being as follows :

> “ $303.30.

> Peekskill, *Oct.*1,1867.

> “ At my death, if I die without heirs, I promise to pay to Enos Lee and Ebenezer Strang, as executors of the estate of Ebenezer Strang, deceased, three hundred, and three -Jjp dollars, which is the amount of my share on the final dis-distribution of the said estate, and of which I was to have the use during my life and at my death to go to my heirs, if any, by said will. For value received.

> “ William James Hoeton.”

Horton died intestate in 1881, leaving an only child, his heir at law, and the plaintiff demanded repayment of the moneys loaned of his administrators. The complaint also sought to reform the agreement by striking out these words, “ if I die without heirs',” upon the grounds that the same were erroneously and unintentionally inserted therein by a mutual mistake of the parties thereto. The appellant insisted that there was no evidence of any mutual mistake, and that the event had occurred,, which, -by the terms of the contract, precluded the plaintiffs, from recovering the amount of the note.

We think it quite immaterial whether the instrument is called a promissory note or a contract inasmuch as the paper is set out *715in the complaint *in Time*verba, and imports an agreement to pay a certain sum of money at the death of the maker upon the condition that he died without heirs.

Whatever the character of the instrument may be it does not affect the right of the plaintiffs to recover in this action, provided the facts alleged and proved in the case entitle them in any view to reclaim the money represented by the note.

The legal effect of the condition inserted in this contract is, if it is held to be a valid condition, to cause the amount of the note to fall into the estate of Horton and be subject to administration by his legal representatives. It is quite obvious that this would result in an unlawful disposition of the money, and that result must have been known to the parties to the contract at the time of its execution. Parties are always chargeable with knowledge of the law, and they must, therefore, have known that the plaintiffs held these moneys in trust and were incompetent to dispose of them, even by the most express agreement, in a manner contrary to the purposes of the trust. *Wetmore*v. Porter, 92 N. Y. 78.

Any agreement, therefore, by the executors to alienate the trust funds would be illegal, not because it would be immoral or contrary to public policy, but simply because they were wholly unauthorized to make it. It is apparent on the face of the paper that this money was repayable to the plaintiffs upon the-death of the defendant’s intestate irrespective of the question whether he left heirs or not. The note describes the money as. being a fund held by the plaintiffs in trust, in which Horton had a life estate with remainder over to Horton’s heirs. Upon Horton’s death the duty of paying this sum to the remainder-men devolved upon the executors, and they could not, by virtue of any contract between themselves and Horton, become discharged from its performance. Neither could Horton acquire, any title to such moneys by agreement with the plaintiffs.

All of the parties dealt with the fund, knowing it to be the subject of a trust and incapable of alienation, and that its trust character followed it into the hands of any person receiving it with the knowledge of the facts. The executors had authority, upon receiving satisfactory security for its return, to deliver possession of the money to the life tenant for the duration of his life, and so far the contract was valid, but this was the extent, of their power over it, and this plainly appears from the face of the contract.

The condition inserted, that the money was not to be repaid in the event of the life tenant leaving issue him surviving, was clearly illegal, and in law impossible of performance, and could not be set up as a defense against an action by the executors to recover possession of the trust fund. *Wetmore*v. *Porter, supra.*

*716The complaint sets out and the proof establishes all of the circumstances attending the loan of money, and it is clear upon the whole case that the plaintiffs were entitled to recover. No question arises over a misjoinder of actions, or as to the mode of trial, for the record"discloses no objection upon these subjects.

Whether the action be regarded as one to recover money loaned or to reclaim money illegally disposed of by executors, or upon the contract, disregarding, as the plaintiffs had the right to do, the manifest illegal condition attached to the provision for repayment, the plaintiffs were' entitled to judgment.

In either view the cause of action did not accrue until after the death of defendant’s intestate, and the statute of limitations constituted no bar to its maintenance.

The judgment should be affirmed, with costs.

All concur; Earl, J.. in result.

Judgment affirmed.