The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1878-12-27
THE GARNER ESTATE.

IMPORTANT DECISION BY JUDGE sPEIR, OF THE
SUPERIOR CoUkT--MR. THoRNE NOT TO BE
REMOVED.
Judge Speir yesterday rendered his decision in the
case of Harriet H. Garner and her daughter Fanny NJ.
Garner against William L. Thorne and others to
cure and protect q trust of S1000,000. 1t appears
that Thomas Garner Sr by bequest in his will gave to
his Thomas of 81 900, 000 to be paid to him
within eighteen months after his fathers death.
William I. Garner the sole executor and by the
terms of the trust bound to make payment Of
this out Of his father estate. the $1,000 900 be-
ing then locked up in the firm of Garner Co.
Before the legacy had been paid Thomas Garner,
Jr., died. leaving to the plaintiffs legacy of
ST. 600 independent of mis- interest in the firm,
and appointed his BROTHER William L. Garner and
Mr. Thorne executors and trustees Instead of paying
the legacy the money, alleged. retained in the
firm and never separated from the estate. When
Thomas Jr., died the firm carried on by William
4. and Of the defendants Johnson. and the
former, executor of his father by entries on the
firms books, the complaint alleges debted the
estate of his father and credited the estate of his
It Is further alleged by giving to himself and Thorne,
trustees mortgage of 100000 Oh property belong
ing to him in Monroe county and inducing the Har-
mony Mills Of which he president and owner OF
the stock to execute another bond and mortgage for
$4,000 out Of the 5000 0OO to himself and Thorne
trustees of his brothers estate and charged the rest
payments, which, according to the allegations Of
the complaint have not been paid.
This is alleged to be improper investment OF
trust funds it being also claimed that the property
covered by the mortgages inadequate and the whole
trust fund imperled. The plant then sets forth
that Thornc trustee, is chiefly concerned to pro-
the interest of Garner Co. instead Of the trust
| and asks for relief in various forms.
Judge Speir in his decision says it is apparent that
the subject matter of the action is the trust and
the cause OF action the violations and msappropria
tions of which it has been the subject The opinion
says:-"H the allegations are true, and in the de-
nrrer they to be taken SUCH this is unjus-
tifable and inexcusabe disregard OF tho plain per-
Torrance duty voluntarily assumed by executors
and trustees, and wful and fraudulent appropra-
ton by them and the other defendants Of funds de-
voted in terms for the protection and support OF the
beneiciaries of the trust 1t is clear that the plaintiffs
entitled to the protection and relief OF the Court.
The only question here is whether they must seek by
separate suits against each OF the individuals impl
Gated in the transactions, whether they at ib
! erty to bring them all into Court one suit. The
objection Is taken that here there is improper
jonder under section 4S4 o. the Code The objection
is based upon the llacy of supposing that the cause
Of action IL the trust fund whereas the causes OF ac
tion before stated, being the violations and mis-
appropriations of the trust, the arises out Ut
transactions connected with the subject matter
of action, which is the trust ITSELF
In conclusion Judge Speir says that although dc
PENDANTS counsel claim that the removal OF Thorne.
as trustee is the primary object of the suit they
mistaken the fact being that the OF action
sists in the alleged notatons and misrepresentation
the trust The restoration and preservation 1T tho
trust funds the primary objects of the action. he
SAYS and the demurrer must be overrulcd and Jud5-
ment ordered for the plaintiffs with costs.