Sherman, J.
In discussing the demurrer, in this case, it is contended, by the plaintiff, that the plea of the defendants is insufficient, because it does not set forth the particular acts of the trustee, by which he has performed the conditions of the bond. We are of opinion that the plea is correct. The conditions of the bond are general, and in the affirmative ; not in the negative, disjunctive or alternative. A general allegation of performance is, in such a case, sufficient. Co. Litt. 303. b. Lord Arlington v. Merricke, 2 Wms. Saund. 410. n. (3.) 2 Chitt. Plead. 481. n. (x.) Cutler v. Southern, 1 Wms. Saund. 116. n. (1.)
In his replication, the plaintiff has assigned four particulars, in which he claims that the trustee has failed to perform the conditions of his bond.
1. The first is, that on the 2nd day of March, 1835, the court of probate appointed appraisers of the property assigned, but that the trustee did not, within two months of the date of the assignment and his acceptance of the trust, make a true and perfect inventory and appraisement of the property held by him in trust, nor a list of the credits and choses in action ; and has ever refused and neglected to inventory and appraise a large amount of the property so assigned, especially one gold watch and trimmings thereto, of the value of 150 dollars.
As to the credits and choses in action, the insufficiency of this part of the replication is very obvious. There is no averment that any credits or choses in action, were assigned to the trustee. And as to the other property, of which a watch and its trimmings are the only articles specified, there is no allegation that it was the property of Griswold, the assignor, or that it ever came into the possession or knowledge of the trustee. These assignments are often made in general terms, without specifying any article, and unaccompanied by a schedule. In what form this was made, the court have not the means of knowing ; but even if it containéd a detailed specification of the property, the plaintiff should have averred, that it belonged to the assignor and came to the possession or knowledge of the trustee ; for the trustee could inventory no [442]*442property contained in the written assignment, to which the assignor was not entitled, nor be chargeable with negligence for omitting any which was not delivered, or known by him to exist. The facts stated in the replication were, therefore, not sufficient to authorize the court of probate to order or oblige the trustee to make an inventory of any part of the property alleged to be omitted. “ The plea of every man,” says Sir Edward Coke, “ shall be construed strongly against him that pleadeth it, for every man is presumed to make the best of his own case.” Co. Litt. 303. The mere fact that property is contained in a written assignment, unaccompanied by ownership or possession, yields no presumption of title, either in the assignor or assignee; much less, is an averment of such an assignment a sufficient allegation in pleading, to shew that the trustee is accountable for the property. But if the ownership of the assignor be ever so distinctly averred, the pleading is defective, unless the property is also shewn to have come to the possession or knowledge of the trustee.
2. The second breach assigned is, that commissioners duly appointed according to the act, reported, on the 19th of October, 1835, to the court of probate, that the sum of 1611 dollars, 82 cents, was due to the several creditors; that their report was duly accepted ; that the assets in the hands of the trustee amounted to 1500 dollars, and were nearly sufficient to pay all the debts allowed by the commissioners ; and that to three creditors, who were named, the commissioners allowed certain sums specified in the replication; but that the trustee had paid no part of the sums thus found to be due.
But, by the provisions of the act, section 6th, taxes, debts due to this state, and charges incident to the trust, are first to be paid. The creditors, whose debts are allowed by the commissioners, are not entitled to any thing, until those previous liabilities are all discharged. The trustee is liable to those creditors, only in respect to the assets, which are applicable to the payment of their debts. In order, therefore, to shew his liability, it was incumbent on the plaintiff to shew, not only that he had assets, but that they were liable to be so applied. But in this case, we cannot infer from the facts stated by the plaintiff, that the creditors, whose debts the commissioners had allowed, and who were to be paid, pro rata, from the clear estate, were entitled to a dollar. Debts [443]*443due to the school fund, or other preferable claims mentioned in the act, may surpass the amount of the assets. The trus-. tee being liable for the surplus only, proper averments, to shew that there was such a surplus, were indispensable.
3. The plaintiff next alleges, that the court of probate made an order that the trustee should settle said estate within a certain period, first limited to one year from the 2nd day of March, 1835, and afterwards enlarged to the 2nd day of September, 1836; “and that said trustee did not close said estate within one year from the said 2nd day of March, 1835, the date of said bond and order, nor by the 2nd day of September, 1836 ; nor has he ever settled the same, but wholly neglects and refuses so to do.” To this charge, the defendants demur specially, because it does not state what acts were omitted to be done to complete the settlement of the trust estate ; and because the matters therein are so alleged that the defendants can take no issue on them.
The general averment of the defendants, in their plea, that the trustee had kept and performed the conditions of the bond, required on the part of the plaintiff a specification, with legal certainty, of the breaches on which he meant to insist. But the allegations in this part of the replication are as general as if he had merely traversed the plea of the defendants. It involves a general denial of performance, embracing every duty and obligation imposed, by the conditions of the bond. It is not the duty of the defendants to specify the acts, which the trustee has performed, but of the plaintiff to show what he has left undone. The reason why the plea may be more general than the replication, in a case like this, is, that the onus lies on the plaintiff of pointing out the particular violations of the conditions of the bond. This is required to apprise the defendants of the facts, which the plaintiff will attempt to prove, on the trial. This is the great end of special pleading. But the averments in question amount to a general allegation of non-performance only, and if deemed sufficient, would supersede all other parts of the replication. They are a mere traverse of the defendants’ plea ; and if issue had been taken upon them, by the defendants, it would amount to a repetition of the plea already given.
4. The last breach assigned by the plaintiff, is, the noncompliance of the trustee, with an order of the court of pro[444]*444bate, made the 18th day of April, 1835, to sell the estate assigned, giving notice of the time and place. No time for the sale is prescribed ; and the most that the plaintiff could claim, under such an order, would be, that it should be executed in a reasonable time. But there is no averment that a reasonable time had elapsed.
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Sherman, J.
In discussing the demurrer, in this case, it is contended, by the plaintiff, that the plea of the defendants is insufficient, because it does not set forth the particular acts of the trustee, by which he has performed the conditions of the bond. We are of opinion that the plea is correct. The conditions of the bond are general, and in the affirmative ; not in the negative, disjunctive or alternative. A general allegation of performance is, in such a case, sufficient. Co. Litt. 303. b. Lord Arlington v. Merricke, 2 Wms. Saund. 410. n. (3.) 2 Chitt. Plead. 481. n. (x.) Cutler v. Southern, 1 Wms. Saund. 116. n. (1.)
In his replication, the plaintiff has assigned four particulars, in which he claims that the trustee has failed to perform the conditions of his bond.
1. The first is, that on the 2nd day of March, 1835, the court of probate appointed appraisers of the property assigned, but that the trustee did not, within two months of the date of the assignment and his acceptance of the trust, make a true and perfect inventory and appraisement of the property held by him in trust, nor a list of the credits and choses in action ; and has ever refused and neglected to inventory and appraise a large amount of the property so assigned, especially one gold watch and trimmings thereto, of the value of 150 dollars.
As to the credits and choses in action, the insufficiency of this part of the replication is very obvious. There is no averment that any credits or choses in action, were assigned to the trustee. And as to the other property, of which a watch and its trimmings are the only articles specified, there is no allegation that it was the property of Griswold, the assignor, or that it ever came into the possession or knowledge of the trustee. These assignments are often made in general terms, without specifying any article, and unaccompanied by a schedule. In what form this was made, the court have not the means of knowing ; but even if it containéd a detailed specification of the property, the plaintiff should have averred, that it belonged to the assignor and came to the possession or knowledge of the trustee ; for the trustee could inventory no [442]*442property contained in the written assignment, to which the assignor was not entitled, nor be chargeable with negligence for omitting any which was not delivered, or known by him to exist. The facts stated in the replication were, therefore, not sufficient to authorize the court of probate to order or oblige the trustee to make an inventory of any part of the property alleged to be omitted. “ The plea of every man,” says Sir Edward Coke, “ shall be construed strongly against him that pleadeth it, for every man is presumed to make the best of his own case.” Co. Litt. 303. The mere fact that property is contained in a written assignment, unaccompanied by ownership or possession, yields no presumption of title, either in the assignor or assignee; much less, is an averment of such an assignment a sufficient allegation in pleading, to shew that the trustee is accountable for the property. But if the ownership of the assignor be ever so distinctly averred, the pleading is defective, unless the property is also shewn to have come to the possession or knowledge of the trustee.
2. The second breach assigned is, that commissioners duly appointed according to the act, reported, on the 19th of October, 1835, to the court of probate, that the sum of 1611 dollars, 82 cents, was due to the several creditors; that their report was duly accepted ; that the assets in the hands of the trustee amounted to 1500 dollars, and were nearly sufficient to pay all the debts allowed by the commissioners ; and that to three creditors, who were named, the commissioners allowed certain sums specified in the replication; but that the trustee had paid no part of the sums thus found to be due.
But, by the provisions of the act, section 6th, taxes, debts due to this state, and charges incident to the trust, are first to be paid. The creditors, whose debts are allowed by the commissioners, are not entitled to any thing, until those previous liabilities are all discharged. The trustee is liable to those creditors, only in respect to the assets, which are applicable to the payment of their debts. In order, therefore, to shew his liability, it was incumbent on the plaintiff to shew, not only that he had assets, but that they were liable to be so applied. But in this case, we cannot infer from the facts stated by the plaintiff, that the creditors, whose debts the commissioners had allowed, and who were to be paid, pro rata, from the clear estate, were entitled to a dollar. Debts [443]*443due to the school fund, or other preferable claims mentioned in the act, may surpass the amount of the assets. The trus-. tee being liable for the surplus only, proper averments, to shew that there was such a surplus, were indispensable.
3. The plaintiff next alleges, that the court of probate made an order that the trustee should settle said estate within a certain period, first limited to one year from the 2nd day of March, 1835, and afterwards enlarged to the 2nd day of September, 1836; “and that said trustee did not close said estate within one year from the said 2nd day of March, 1835, the date of said bond and order, nor by the 2nd day of September, 1836 ; nor has he ever settled the same, but wholly neglects and refuses so to do.” To this charge, the defendants demur specially, because it does not state what acts were omitted to be done to complete the settlement of the trust estate ; and because the matters therein are so alleged that the defendants can take no issue on them.
The general averment of the defendants, in their plea, that the trustee had kept and performed the conditions of the bond, required on the part of the plaintiff a specification, with legal certainty, of the breaches on which he meant to insist. But the allegations in this part of the replication are as general as if he had merely traversed the plea of the defendants. It involves a general denial of performance, embracing every duty and obligation imposed, by the conditions of the bond. It is not the duty of the defendants to specify the acts, which the trustee has performed, but of the plaintiff to show what he has left undone. The reason why the plea may be more general than the replication, in a case like this, is, that the onus lies on the plaintiff of pointing out the particular violations of the conditions of the bond. This is required to apprise the defendants of the facts, which the plaintiff will attempt to prove, on the trial. This is the great end of special pleading. But the averments in question amount to a general allegation of non-performance only, and if deemed sufficient, would supersede all other parts of the replication. They are a mere traverse of the defendants’ plea ; and if issue had been taken upon them, by the defendants, it would amount to a repetition of the plea already given.
4. The last breach assigned by the plaintiff, is, the noncompliance of the trustee, with an order of the court of pro[444]*444bate, made the 18th day of April, 1835, to sell the estate assigned, giving notice of the time and place. No time for the sale is prescribed ; and the most that the plaintiff could claim, under such an order, would be, that it should be executed in a reasonable time. But there is no averment that a reasonable time had elapsed. For this reason the replication is manifestly defective. In Parsons v. Camp, 11 Conn. Rep. 529., this court say: “ What constitutes a reasonable time, is partly a question of law, and partly a question of fact. The mere circumstance that more than twenty days had elapsed since all other objects of the license [the matter then in question] were accomplished, would not conclusively prove, that a reasonable time had elapsed. It is not stated, whether any, and if any, what circumstances were given in evidence to shew that this was a reasonable time.” Upon the same principle, we cannot, in this case, decide, that the time which has elapsed since the 18th of April, 1835, does necessarily, per se, constitute a reasonable time for the performance of the order of sale. There is nothing here, which can enable us to dispense with the averment that a reasonable time has elapsed. Ifit has not, the trustee is certainlynot in fault for having neglected to sell. It is a substantial and necessary allegation. The trustee may have been deprived of the possession of the property, and thereby a sale necessarily delayed until after suit was brought. Many other circumstances may have occurred, which would render the delay reasonable. But if the defendants had joined issue on this part of the replication, the plaintiff must have had a verdict, even if the suit had been instituted within a very short time after the date of the order; for the order would have been unexecuted. Whether a reasonable time had elapsed, the jury could not inquire ; for it was not involved in the issue.
For these reasons, without adverting to others urged in the argument, we consider the replication as insufficient, and affirm the judgment of the superior court.
In this opinion the other Judges concurred, except StoRes, J., who was not present.
Judgment affirmed.