The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-07-14

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pinistsrvd. Gee CsakssSe. Egsrtsn, aAninietrator,
a Wed. 40, ana r. O. N ersf, Is Wend. ~.
Hxth.--Anl Ter the san reasons, thesgh for The
puTposrs Of collection and pTesesystboA merely,
the plaintiff On the receipt OF sPeeiA stten If "a
mjnistsation I'd eoiiKenaUm booonHe ante)e6 10 col
lect receive and hold the said personal estate and
~ such for that purpose to maintain this sui In
one aspect OF the cIaim made by the administrator
ad coli 70 maintain our action Tor the property b
even more dear; and the defendant insists that
TO the bond and mortgage OF Frances 3. Sage, the
said Ruth s. Harrison died interstate, and that John
Harrison in virtue Of his marital rights became en-
titled to it absolutely for his use, (sabect only
10 the payme Mt Of dcbts) II that wcrc conceded Il
would NOT impair the right Of the administrator Gd
coli. (pending o controversy IN regard to the ap-
pointment n an administrator de besis now to
for and recover the bond and mortgage fron third
person who had no title thereto.
Seventh--It follows that the plaintiff in either
capacity, whether as An administrator 0d coll, In
which this suit was commenced, or In his character
Of administrator de boais cum test aRssen0 In
which capadty the suit has been revived In his
name 10 entitled to recover the personal property
in the complaint mentioned, forming part Of the
trust estate 40 far as the same In The hands Of
The defendant at the time Of the death Of the said
John Harrison, or has come TO his hand since that
death.
Eighth-Th,s case has been thus far considered
upon The view which conclude TO be the correct
viz: That Whatever conveyance may have been
necessary TO vest the title 10 the real estate held by
kipp, ~ trustee, it was sufficient, in respect TO the
personal estate that John Harrison received IL and
held it, made collections thereof and exercised
troll over It, and that in this he acted executor
as above stated. And the case has also been con-
idered upon this further view OF the marriage
ettlement, which, though not without some hesita
tiCn, also conclude ~ be correct, VIZ. that the
duties Of the trustee, Solomon Kipp, ceased with
the deeth of the said Ruth S. Harrison, and the
transfer by him OF the property 70 the person named
executor in the said last will ard codici, that he
(SoOmOn Kpp) was not the person who was TO
carry into execution the provisions Of those instr
nents. Under these views tue appointment Of Q
new trustee, so far as the personal property was
concerned, was wholly unnecessary, and thus tar 1t
has been so cOnsidered; and it conferred upon the
resen. plaintiff no better title than he had without
such appointment, and without IN assignment or
transfer to him by the said Kipp, and for the
reason that the power Of Kipp over the personal
estate had ceased his trust had been performed and
the property had passed into the hands Of John Har
risor nothing remained TO be done by him % trus-
tee Of the personal estate, and thege was neither
tie trust in him 70 be transferred But II the IT,
tie to tbepersOnl property remained m Solomon
kipp until he executed formal instrument OF trans
fer In writing, or il Gas some Of the language OF the
marriage settlement would at first seem 70 lndicate)
Solomon Kipp ia TO be deemed by force Of the mar
rage settlement, substituted trustee, appointed
Tin default of any other appointment or dispo1iton)
in the place and stead Of the executor In the said
last will to perform the trusts contained In the lat
ter then, and3 in either event. the appointment Of
the plaintiff as trustee In the place and stead Of 30
lomon Kipp, and the conveyance and transfer Of
the properly by Kipp to the plaintiff devoved up
on the latter the actual title to the property, and
clothed him with an active trust to be performed In
relation thereto, and he IL entitled TO recover the
property upon that very ground. Although have
yet the trusts declared in the marriage set
tiement in respect to the personal proper
~, is expressed In terms which in NO slight
degree incicate design that the trustee, lKipp)
was himself to appropriate the property 70 the
uses and pnrposes appointed in the said last
viii and codicil Thus It Provides tibet if tho said
party OF the first part shall depart this lie In the
lifetime of her intended husband that then the said
Kipp shall pay over, assign and transfer the said
trust moneys, funds, securities and premises, and
interest, ard annual production, and payments, or
such part OF parts thereof respectively, as shall nc
after answering the trusts and purposes SsrsinSa
fore contained, 10 the person or persons named IN
the aforesaid will and Testament above referred 70,
CT to euch person or persons, as are named IA the
codici thereto annexed" II by person or persons
in this clause be Intended the benedciares provided
for in the will anu codicil, viz the children Of the
decedent, who are TO receive the interest and in.
tome, and their lawful issue or heirs al law, who
ore ultimately to receive the principal then clearly
the trust conferred upon Kipp il still subsisting,
and is an active trust, which, by the appointment
OF the plaintiff IS trustee in lis stcad, and the
anaIer OF the property to him by such former trus
iee bss together with the title to the property, dc
VOWED upon the plaintiff.
Ninth--1n view OF the suggestions above eighthly
made, deem 1t material TO state my further con
cnsion IN relation TO the effect Of the appointment
made by the Supreme Court OF this State above re
ferred to, and which was claimed by the desendants
counsel the trial. 10 be inopcrative for the want
OF parties. That court had Jurisdiction OF the sub
ject matter 1t had the plaintiff who was interested
therein as administrator. and also husband Of his
Axr a. In
and Jurisdiction and satisfactory allegations that
the other costa. que trust In being, were out OF the
State, its order was therefore operative and eec.
tua far the parties before the court werc con-
enco to that order passed the legal title, and chrg
ed the nav trustee $50 far as snch trusts remained
to be executed) This is sufficient to enable thc
rev trustee to maintain his title 70 the propertyit
self, when the other csani que nd seek to hold The
former trustee responsible for their interest In the
trust estste. II may be material 70 inquire whether
they In fact absent from the State, and how far
he could be relieved from responsibility by pro.
cecdng Of which they had no notice but rs against
third persons. The proceeding passed the title. and
therefore against the present defen iantI there
is anything in the sug .es.ions eignthly above
statcathe appointment was valid. nor IN H. chcct,
impaired because the conveyance was made the
plaintiff as administrator The transfer Of the title
was made, and as against this defendant the title
passed, and the words, ~ administering, No.,
may either be regarded az surptusage or the plsiD-
tin may le said to hold the property charged with
such trusts as according TO the true construction
Of the instrumental under which it Il hela. Jperly
appertain TO the TITLE there IL no defeat ~ tis res-
pect which Can avail this defendant.
Tenth-It appearing BY the replication, and BY
the proofs, that the plaintiff has in fact though since
the commencement Of this action, oomprom ed and
discharged the bond and note Of Rleecaaers i Ven
dyke, he IL not entitled now 10 any decree which shall
bind the defendant 10 the payment Of any money on
that account, st most Tin the absence OF any proof
ttsatt hn~c euSA
son Of the Illegal Withholding thereof by the defend
anti tho Court should only direct that they be given
mp tor the purpose Of being cancelled. In respect
to the bond and mort gage Of Frances c. Sage, nov
in the bands Of the Receiver, herein the decree win
provide that it be delivered to the plaintiff together
with any moneys collected thereon by the Receiver,
after allowing to the Receiver his expcses and COM
missions In respect 10 the interest money collect by
the dcfeL daiit on the Sth day OF Dec 1919, which
u the only money which appears by the proofs to
have cone to his hands not shown ~ have been paid
over to the executor, John Harrison, there is no
claim in the plaintiffs complaint 10 this money nor
that the defendant has II in HIS hands IL IL there.