#### GOVIN et al. v. DE MIRANDA.

(Supreme Court, General Term, First Department.

June 15, 1894.)

1. Declaration or Trust—Reservation by Declarant.

A recital, in a declaration of trust, that “to me alone is reserved the right to do with this money as I deem proper,” does not limit the rights of the beneficiary, but is merely an assertion by the declarant that he had the right to do as he chose with the money, and that third persons had no right to question the disposition made by him.

2. Judgment—Res Judicata.

A judgment for plaintiff in an action for the conversion of bonds held by defendant as plaintiff’s agent is not a bar to a subsequent action by plaintiif to recover interest on the bonds collected by defendant before the conversion, as defendant’s liability to account, as agent, for the interest collected, formed no part of the claim for damages for the conversion of the bonds.

Appeal from circuit court, New York county.

Action by Felix St. Anna Govin, Emilia Govin, and Guillermina Govin against Luciana Govin De Miranda, as executrix of the will of Felix Govin y Pinto, deceased. From a judgment entered on a verdict directed by the court in favor of plaintiffs, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.

Affirmed.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.

Edward C. James, for appellant.

Abram Kling, for respondents.

FOLLETT, J.

Prior to December 8, 1883, Felix Govin y Pinto purchased and paid for 38 coupon bonds issued by the Chicago, Burlington & Quincy Railroad Company, for $1,000 each, bearing interest at the rate of 4 per cent, per annum, payable semiannually, the payment of which was secured by a mortgage upon the Iowa Division of said corporation. On the 8th of December, 1883, Felix Govin y Pinto executed an instrument, written by himself, of which the following is a copy:

> “In possession of Ramon M. Estevez there are sixty thousand dollars, in U. S. bonds, which I declare belong to the three children, brothers and sisters, Emilia, Felix, and Guillermina Govin, residents of this city, living at 147 E. 89th St. Besides, in my box, there is a legacy which contains $29,000 R. R. bonds, Iowa Division. Of these, ten thousand belong to Luz Diaz y Sanchez, mother of the above-mentioned individuals. She has a note for same signed by me, and the rest belongs to the above-mentioned Emilia, Felix, and Guillermina, in equal parts. No one may go contrary or against this declaration, as it is based under conscience and justice. To me alone is reserved the right to do with this money as I deem proper.

> “New York, Dec. 8th, 1883. Felix Govin y Pinto.

> “Acknowledged before me this 15th day of December, 1883.

> “Jas. W. Hale, Notario Publico, 4 Hanover St.”

This instrument was sealed in an envelope on which was the following indorsement:

> “A declaration in favor of Emilia, Felix, Guillermina Govin, and Luz Diaz y Sanchez, who lived in 147 E. 39th Street.”

*348May 23, 1891, Felix Covin y Pinto died at the city of New York, leaving a last will and testament, which was duly probated November 20, 1891; and letters testamentary thereon were on that day issued to the defendant, who accepted the trust, and entered on the execution thereof. After the death of the testator, the declaration of trust, sealed in an envelope,, and indorsed as above stated, was found in the safe; and there were also found in the vault of a safe-deposit company 38 bonds of the Chicago, Burlington & Quincy Bailroad Company, of the kind above described. The testator collected the interest which fell due on these bonds during his lifétime, and subsequent to bis death the interest was collected by the defendant. It is conceded that the testator, in his lifetime, supported the plaintiffs in this action, who, with their mother, Luz Diaz y Sanchez, lived together, as a family, at No. 147 East Thirty-Ninth street, New York City. Whether the testator and the plaintiffs’ mother were married, is a disputed question. January 13, 1892, the plaintiffs demanded that the defendant deliver to them 19 of the Chicago, Burlington & Quincy bonds, Avhich was refused; and March 25,1892, these plaintiffs brought against this defendant an action in replevin for the recovery of the bonds, in which an issue was joined, and resulted in a judgment for the recovery of the bonds, or, in default of their delivery, for the recovery of their value ($17,950), with interest thereon at the rate of 6 per cent, per annum from January 13, 1892, to February 27, 1893,—the date of the trial of that action,—which judgment was affirmed December 22, 1893, by the court of appeals. 140 N. Y. 474, 35 N. E. 626. Whether the bonds have been restored, or the judgment for their value paid, does not appear. On the 22d of August, 1893, this action was begun to recover the interest on the 19 bonds collected by the testator in his lifetime, and by the defendant as his executor, with interest on the sums so semiannually collected. On the trial a verdict was directed for $12,034.80, which amount seems to have been agreed upon, or at least not contested. How much of this sum was for coupons collected by the testator, or how much for coupons collected by the defendant, does not appear. Nor does the record disclose the particular semiannual payments of interest covered by the verdict, or the amount allowed for interest on such semiannual payments as were included in the sum recovered.

It has been finally determined in the replevin action that the plaintiffs, on the 8th of December, 1883, were, and haAre since remained, the owners of 19 of the bonds of the Chicago, Burlington & Quincy Bailroad, which judgment is conclusive of the question of title to the bonds, and cannot be litigated in this action. The fact that it appears in this case that the testator, prior to December 8, 1883, purchased and paid for the bonds in dispute, which fact was not shown on the former trial, does not authorize this court to reconsider the question of ownership. If this fact is a controlling one upon the rights of the litigants, the defendant should have proved it on the trial of the former action, or, if unknown at that date, she should have moved for a new trial on the ground of newly-discovered evidence. The conclusiAeness of the first judgment cannot be *349•destroyed by showing that a fact existed, which, had it been proved, would have produced a wholly different judgment. Williamsburgh Sav. Bank v. Town of Solon, 136 N. Y. 465, 32 N. E. 1058. This rule is so elementary that it does not need to be supported by the citation of cases. To hold the contrary would destroy the effect of .judgments, and permit questions once settled to be relitigated upon the discovery of some.new fact.

It being conceded that the defendant and her testator collected the interest on plaintiffs’ bonds, it is difficult to see on what theory the defendant can escape a judgment for the recovery of the amount ■so collected without establishing an affirmative defense. The interest payable by the terms of a contract is but an incident thereof, .and presumptively belongs to whoever owns the contract when the interest falls due. This is a rebuttable presumption, which may be ■overthrown by showing that the owner had assigned the interest due or becoming due, and, in case it is payable upon the presentation of coupons, that they have been detached and transferred by the owner. There is no evidence in this case indicative of an intention on the part of the plaintiffs to relinquish the interest; and the ■only fact, to which we are referred, tending to show that the interest belonged, not to the plaintiffs, but to the testator, is the last clause of the instrument of December 8,1883:

> “No one may go contrary or against this declaration, as it is based under ■ conscience and justice. To me alone is reserved the right to do with this money as I deem proper.”

This language was not intended to limit, but to make certain, the rights of the beneficiaries; and it is an assertion by the declarant that he had the right to do as he chose with the bonds, and that third persons had no right to- question the disposition which he made of them, The declarant, by this clause, did not reserve, or intend to reserve, to himself, the right to dispose of the accruing interest on the bonds, which he declared belonged to the beneficiaries.

The statute of limitation is not a bar, for several reasons: First, the testator became a trustee for the beneficiaries, and the statute did not begin to run until he had refused to execute the trust. Further than this, we are unable to determine from the record in this case for how long a period the plaintiffs were permitted to recover the semiannual interest, nor how much was recovered on account ■of ihe collections made by defendant, and how much on account of the collections made by the testator. Had the defendant intended to raise the question that recovery for some part of the interest collected was barred by the statute, she should have shown how much was collected anterior to the 6 or 10 years preceding the date •of the commencement of the action.

It is urged that the judgment in the replevin action is a bar to this, on the theory that the first judgment is the measure of the defendant’s liability to the plaintiffs for the conversion of the bonds. So' it is. But the defendant’s testator never refused to deliver these bonds to the plaintiffs, but held the securities as an agent; and the defendant did not convert the bonds until she refused to deliver them upon the demand of the plaintiffs, who, in *350the first action, could recover only the bonds, and the damages for their unlawful detention, which damages began to accrue from the date of such detention. The collections of the interest by the testator and by the defendant before her refusal to deliver were not wrongful, but legal, acts, and their liability to account as agents for the collections formed no part of the claim for damages for the wrongful detention of the bonds. The judgment should be affirmed, with costs. All concur.