The sun. [volume] (New York [N.Y.]) 1833-1916, 1878-12-27
CARRIERS ESTATE IN COURT.
THE ALLEGATIONS AGAINST TRUSTEE
THORNE By THE HEIRS.
The owner Of the Inflated Mohawk ne FIX
ecutor Of Tive Estates-uOw Legacy OF
n million was shined by Double Entry.

The owner OF the Inflated Mohawk ne FIX
ecutor OF Two E.tates-uOw Legacy OF
Million was shined by Double Entry.
A decision was given by Judge Spcr yes
terday in the Superior Court. on n demurrer to
tho complaint in the case OF Harriet II. Garner
and Fanny NJ Garner against William E.
Thorne and others Tho case was argued be-
fore him in November. Harriet II. Garner is
the wife of the late Thomas Garner Jr.. and
Fanny VI. Garner is her daughter. The notion
was instituted bv them to secure and protect
trust OF 81 600 900 now in the custody Of the de-
PENDANTS.
Thomas Garner Sr.. beaueathed to his son
Thomas Garner. Jr.. 81 100000. to be paid to
him within eighteen months Of tho formers
death. When Thomas Garner, Sr. died. Will
liam 4. Garner became sole executor for the
estate. which was estimated at moro than
60 900 900. and out Of which he was bound. by
the terms Of the will. to pay Thomas Garner.
Jr 81 100000. The money was at that time
locked up in the firm Of Garner Co.. COM
posed OF William T. and Thomas Garner, Jr
Before the sum bequoathod to Thomas Garner.
Jr.. had been paid. he died. and left to his vito
and daughter. the plaintiffs in this action. the
81 900. 600. independent OF his interest in the
firm. appointing his brother. William T. Gar
ner. and William +. Thorno executors and
trustees. They both qualified. and assumed
the trust to collect and receive that
sum; and william T. Garner. In tho
capacity OF executor for his fathers
estate was bound to pay over the sum In ques
ton TO the executors and trustees. The money
was not paid. but was retained in tho frm.
which after the death Of Thomas Garner Jr..
was com posed Of William T. Garner and others.
Instead of making such payment. william Il.
| Garner as executor Of his fathers viii, by
| entries on the books OF the flrm dehited ms
| futnpra pgtntp and credited brOtnprH tAtnte
| with the amount Of the Legacy, by giving TO him.
self and Thorne as trustees. mqrtGa n s, Tor
| roe County and bv causing the Harmony Mills
of which he was President and owner OF the
| $4,000 out Of the 100000 to himself and
| Thorne, "a trustees of his brothers estate. and
| charged the remainder as payments, which pay
| ments. according to the allegations OF tho COM
| plant. had not been made.
| improper disposal OF the trust fund: that the
| property covered by the first mortgage Of
| $4,000 was a part OF the estate oil Thomas tnr-
| ner, Jr ~ residuary deNisee under ms lhthrr
| will; that the Harmony Mills was IN name
| corporation, but owned by Garner Co.; that
| the mortgage thereon was not lawfully exc
| cuted. and that both pieces Of property were
| subject To two mortgages OF equal amounts with
| out priority each over the other. TO the estate
| Garner ST. was also bedueathed an equal Legacy
| OF 100000: that the property covered by me
precariOus. and the whole trust fund imperillcd :
that tho object Of the whole arrangement was
|
the trust money for the use Of Garner X Co
that the death Of VIM. r. Garner left the whole
trust property and his whole estate, Including
surviving partner. subject 10 the p"rils OF bust
ness. under a will by which. during the lie
time OF the daughters OF " m. l. Garner, the
| business was TO he carried on by johnson, rs
survivor, and by the executors. Thorne. Law
renee and Johnson.
The complaint then sets forth the legal rights
OF the plaintiffs and the liability OF the different
defendants in respect to me trust iund anu acts
| Of nul fpug M ~ a.
PENDANT, Thorne, as trustee. and that no Is
chiefly concerned in promoting the interests OF
trust. The complaint concludes with a
| prayer for relief adapted 70 the liability sci
The demurrer was principally on the ground
that the issues In the complaint should be sep
arately tried rs to the individual dsiendants
| In his opinion. Judge Sueir says: The obIec
OF the suit is n Legitimate one. and peculiarly
appeals to 2 court OF equity TO accomplish ~
purposes. II the allegations OF the complain
be true. and as such they must on this demurrer
BILE Disregard OF the plain performance OF I
duty voluntarily assumed by the executors an,
trustees and wlful and fraudulent appropri
| alton by them and the other defendnnts o
| funds devoted in terms for the protection an
! support Of the bencii siaries Of the trust IL i
cltar that the plaintiffs are entitled to that pro
ION herr is whether they must seek il by sep
I | arair suits against each OF the Individual
: | implicated In the transactions, or whcthc
| they are AZ liberty 10 bring them ali into cout
! | IN one suit The complaint recites only On
4 connected history Of this trust fund. IN
! question il whether the several matters chnrg"
= | are So dcsi gnrd and uucuuucctcd rs To rrndc
the joining Of them as one bill ground OF dc
, Kitcr reviewing the case nj great length
| Judge Speir said: ~ The issues presented ia IN
o complaint are not such as would reQul re- 10 b
h | separately tried hy a Court OF Equity, and, al
, though the relefs growing out Of the bill praye
for u respect 10 the several defendants are. a,
10 cordlng t. their respective Liabilities, IL Is stl
70 | but ono subject matter of action
4 ON that ground he oyerrulcd the demurrer.