Roediger v. Kraft

154 N.Y.S. 435

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 9, 1915
• Docket: No. 7606
• Status: Published

Opinions

HOTCHKISS, J.

The complaint alleges that one Julius Miller, as executor and trustee under the last will of Jacob Miller, deceased, paid to Traugott F. M. Roediger, defendant’s testator, “for safe-keeping and on deposit for the benefit of the plaintiff as administratrix,” etc., various sums of money which the said Traugott had not repaid. In form the relief demanded was an accounting and judgment for the amount so found due. The complaint contains no allegation of fraud. The facts found by the learned court below were as follows:

Louisa Roediger, plaintiff’s intestate, was the daughter of Jacob Miller, deceased, and at the time of her death was entitled to a vested one-sixth remainder in his estate, subject to the life estate of her mother, the wife of Jacob, who survived the intestate, Louisa. After the death of Louisa’s mother, the widow of Jacob, Julius Miller, the executor and trustee under the will of Jacob, undertook to distribute the estate, and to that end, without authority, paid to Traugott F. M. Roediger, the husband of Louisa, the amount due on account of Louisa’s said interest. The dates and the amounts of the payments so made were: November 27, 1901, $1,160; January 17, 1902, $1,-831.31; and February 18, 1902, $3,101.65. At the time these moneys were received by defendant’s testator, he knew that they represented his wife’s interest in the estate of her father, and that his wife had died intestate, leaving no valid last will and testament, but leaving her surviving her said husband, Traugott, and six children. The court also found that, on the receipt of said moneys, Traugott F. M. Roediger by operation of law became a trustee of and liable to pay over said moneys to the plaintiff, and that the claim of the plaintiff was not barred by the six-year statute of limitations.

The plaintiff offered testimony to the effect that, at the time these payments were made to Traugott, he told Julius it was his intention to dispose of the same according to the “wishes” of his said wife, and as proof of such “wishes” plaintiff offered in evidence writing in the form of a last will and testament, signed by the plaintiff’s intestate, but which writing was insufficient as a last will, for which reason probate thereof had been denied. Such testimony was insufficient, how- . ever, to support a finding that said moneys were received by Traugott upon any express trust whatsoever, much less upon any promise or agreement to carry out the terms of the trust contained in the will of Jacob, or that Traugott assumed to- succeed Julius as trustee under such will and to perform Julius’ duties thereunder. On the contrary, as above stated, the court found that by receipt of said moneys, and solely by operation of law, Traugott became “a trustee de son tort.” Under these circumstances the case is governed by the principles applied in Mills v. Mills, 115 N. Y. 80, 21 N. E. 714, Lammer v. Stoddard, 103 N. Y. 672, 9 N. E. 328, and Price v. Mulford, 107 N. Y. 303, 14 N. E. 298. In Lammer v. Stoddard, the court said (page 673 of 103 N. Y., page 329 of 9 N. E.):

“It is undoubtedly generally true that, as against a trustee of an actual, express, subsisting trust, the statute does not begin to run against the benefieiary until the trustee has openly, to the knowledge of. the beneficiary, renounced, disclaimed, or repudiated the trust. But Edward Lammer was not the actual trustee of this fund, and he never acknowledged a trust as to the money loaned him. He could, at most, have been declared a trustee ex maleficio, or by implication or construction of law, and in such a case the statute begins to run from the time the wrong is committed by which the party became chargeable as trustee by implication.”

The fact that Traugott received the moneys with notice of the trust attaching to the same in the hands of Julius Miller is, in an action of this character, immaterial (Price v. Mulford, supra), and it is likewise immaterial that the form of relief demanded in the complaint was for an accounting (Mills v. Mills, supra, page 85 of 115 N. Y., page 714 of 21 N. E.).

The six-year statute of limitations having been duly pleaded by the defendant, and this action having been commenced long after the statute had run, it follows that the judgment should be reversed, with costs, and the complaint dismissed, with costs.

CLARKE and DOWLING, JJ„ concur.