hard, the grantor, was unmarried, and, in default of the exercise by her of the power of appointment, her heirs at law at the time of her death would become absolutely entitled to the remainder. The reservation of the power of appointment did not at all affect the trust, or vest in the grantor a beneficial interest in the remainder. Her interest as a beneficiary under the trust was entirely distinct from the right that she reserved to exercise this power. She parted with all title to the property, which vested in the trustees. She had a right to enforce the performance of the trust in equity. She also reserved to herself a power of appointment of the remainder by a last will and testament, the two being entirely distinct; the right to appoint being one which could only become effective after her death, and would necessarily depend upon her leaving a last will and testament by which only could the power be exercised. Upon the failure to exercise such power, the estate would vest absolutely in those who would be her heirs at law at the time of her death, so that the remainder would necessarily be contingent. Thus, if the grantor of the power should have children who should die before her, those children would never have any interest in the property, as they could never become the heirs at law of the grantor. The provisions of this original trust instrument, however, were seriously modified by the agreement of the 18th of November, 1879, and the judgment of the Supreme Court entered on the 26th of November, 1879, ratifying and confirming that agreement. On the 17th of November, 1879, an indenture was executed between Charles G. Landon, a trustee under the deed of trust of July 31, 1872, which recited the instrument creating the trust, the resignation of two of the trustees; that the party of the first part was the remaining trustee. and contemplated resigning his trusteeship, and for that purpose had commenced an action in the Supreme Court to have the accounts passed and that he be discharged from said trust; that Anna B. Hunt had consented that the resignation of all three trustees should be accepted, and requested that Alonzo C. Monson and William Jay, the parties of the second part, should be appointed as the successors of the said trustees. The indenture witnesses that the party of the first part, the remaining trustee nominated, constituted and appointed the said Monson and Jay, parties of the second part, to be trustees under the deed of trust of the 31st of July, 1872, and that for the purpose of vesting said Monson and Jay with all the said estate, real and personal, the said party of the first part did grant, bargain, alien, release, transfer, and set over to Monson and Jay, their successors and assigns, all the trust estate, real and personal, then held under the provisions and trusts of said indenture, subject to the trust contained in and created by the said indenture or deed of trust. It was further recited that on the 18th day of November, 1879, an indenture had been executed between Anna B. Hunt, the original creator of the trust, and Monson and Jay, which recited the trust deed of the 31st of July, 1872, the resignation of the three trustees provided for in said trust deed, and the appointment of Monson and Jay as trustees under the said trust deed; that the original trustees had exercised the discretion in them vested in and by the said trust deed by advancing to the said Anna B. Hunt the sum

upon receiving the same exercise the power of appointment by her reserved in the said trust deed, and designate and appoint by deed under seal the persons to whom said estate is to be paid over, distributed, and divided at her death; that the said Anna B. Hunt had determined so to exercise her said power of appointment to her reserved and to dispose of the estate held in trust as thereinafter set forth. The indenture then witnessed that in consideration of the premises, and the sum of $50,000, paid to her by the said trustees, the said Anna B. Hunt did by virtue of the power to her reserved in and by the said deed of trust designate and appoint that the estate remaining in the hands of the trustees at the death of the said Anna B. Hunt should be paid over, divided, and disposed of by paying the rents, incomes, and profits thereof to her husband during his life, and, upon his death to assign, transfer, convey, and set over the said trust estate unto such of her children as should then be living and to the issue of such of them as should have died in equal shares per stirpes, and not per capita absolutely and forever. The said Anna B. Hunt, however, reserved to herself the right to vary the disposition made of the said trust estate by her last will and testament, or by an instrument in the nature thereof thereafter to be executed by her by directing that a certain part of such annual income should be paid to her children during the lifetime of her said husband if she should so desire, and also by directing and appointing that the said estate upon her husband's death should be assigned, transferred, conveyed, and set over unto one or more of her children or to their issue to the exclusion of other of her children and their issue, or that such estate be assigned, transferred, conveyed, and set over unto said children and to their issues in such unequal shares as she might desire and as she might thereafter determine; that, in the event of there being no child or children of hers, nor issue of a child or children at the time of the death of the said Anna B. Hunt, then she reserved to herself the absolute right of disposing of the said estate by her last will and testament or an instrument in the nature thereof to any person or persons whomsoever she might desire.

Subsequent to the execution of these two instruments, judgment was entered in the action commenced by the remaining trustee and to which the said Anna B. Hunt, her husband and all of her children, except the defendant Rupert Herbert Hunt, who was then unborn, were parties. That judgment recited the conveyance by the plaintiff to the substituted trustees, the indenture by which the defendant Anna B. Hunt had received the sum of $50,000 on condition that she should exercise the power to her reserved of appointing by her last will and testament or otherwise the manner in which the remainder of the said trust estate should be vested and divided at her death; that the said Anna B. Hunt, in consideration of such payment, had so exercised the power, and had, by an instrument duly executed under her hand and seal, duly appointed the manner in which said trust estate should be vested and distributed at her death. It was ordered, adjudged, decreed, and declared that the power of the defendant Anna B. Hunt reserved by the said trust deed of appointing and directing the manner in which said trust estate should be paid over and divided at her death had been duly and effectually exercised and exhausted by her execution of a

certain indenture of deed under her hand and seal dated the 18th day of November, 1879, whereby she appointed and directed, in substance, that the two trustees or their successors should hold the said trust estate during the lifetime of her husband, the defendant Percy Hunt, if he should survive her, and should pay the income thereof, or such part of said income as she might by her last will direct to be paid to him, and upon his death, or her death as the case might be, that they should divide the principal of said estate equally among her children, and the issue of such of them as should have died before that time per stirpes, or to pay over and divide the principal of said estate equally among her children, and the issue of such of them as should have died before that time per stirpes, or to pay over and divide the principal of said estate to and among her children and their issue in such shares and proportions as she might by her will direct, all of which by reference to said original deed or to the record thereof, when the same should have been recorded, should more fully and at large appear; and it was further ordered, adjudged, and decreed that the said appointment and disposition of the said estate so made as aforesaid was ratified and confirmed, and it was thereby declared that the power to appoint and dispose of the said estate had been exercised and exhausted, and that such appointment and disposition were effectual, final, and irrevocable. The effect of this instrument ratified and confirmed by the judgment was to limit the power of appointment reserved by Anna B. Hunt so that it thereafter could only be exercised according to the terms of the instrument judicially declared to be effectual and irrevocable. It bound all the parties to that action, including Anna B. Hunt, in whom the power to dispose of the remainder of the property had theretofore existed. It still reserved, however, to Anna B. Hunt the right by a last will and testament, or instrument in the nature of a last will and testament, to distribute the remainder among her children as she wished, either in unequal proportions or by excluding one or more of her children, and appointing one or more of them to receive the entire trust estate upon her death. It was adjudicated that a valid trust existed, that the legal title of the corpus of the trust was in the trustees, and that the right of the beneficiaries was restricted to an enforcement of the trust in equity. The trust existing, the trustees holding the title. to and possession of the property in July, 1898, the indenture upon. which this action is based was executed. The defendant Anna B. Hunt and her children were therein described as residents of Paris, France. She and her children who were of age united in what was called a mortgage to secure the sum of £9,200. This instrument recited the trust indenture of July, 1872, and also the indenture of the 18th of November, 1879. It also recited that the said Anna B. Hunt had reserved a power to vary such disposition by her will by appointing such trust estate to her children in unequal shares, or to one or more children or their issue to the exclusion of the others. It then provided that the mortgagors jointly and severally covenanted to pay to the mortgagee the sum of £9,200 with interest thereon; that the mortgagors as to the share which she or he was or should become entitled to under the said indenture of the 31st of July, 1872, and the 18th day of No

owner, did grant, appoint, bargain, sell, assign, transfer, and set over unto the mortgagee all the real and personal estate and all other the trust estate comprised in or then subject to the trusts of the said indenture of the 31st of July, 1872, and the 18th day of November, 1879, or either of them, to hold unto and to the use of the mortgagee, subject to the proviso for redemption thereinafter contained. It was further provided that the said Anna B. Hunt, at the request and with the concurrence of the said Frederick Percy Hunt, Lilian Catherine Hunt, and Reginald Sidney Hunt, released unto the said Frederick Percy Hunt, Lilian Catherine Hunt, and Reginald Sidney and all other persons interested in the said trust estate the power of appointment in unequal shares or to one or more child or children to the exclusion of the others, to the end and intent that the said trust estate shall vest absolutely, subject to the life interest of the said Anna B. Hunt, in the said Frederick Percy Hunt, Lilian Catherine Hunt, Reginald Sidney Hunt, and Rupert Herbert Hunt in equal shares, and the said Frederick Percy Hunt, Lilian Catherine Hunt, and Reginald Sidney Hunt mutually covenanted and agreed to divide equally, notwithstanding any such appointment or attempted appointment, every and all parts and interests in such trust estate to which they may respectively be or become entitled, with a covenant of further assurance. By this instrument a lien was created upon the interest of the mortgagors in all the real and personal estate, and all other the trust estate cornprised in or then subject to the trust. There was no assignment or attempted assignment of the income which was payable to Anna B. Hunt for her life. What was transferred to secure the payment of this loan was the real and personal estate which constituted the trust. Anna B. Hunt attempted to release unto her three children who joined with her in the execution of the mortgage the power of appointment in unequal shares to one or more child or children to the exclusion of the others, and her three children then mutually covenanted and agreed to divide the trust estate equally, notwithstanding any such appointment or attempted appointment. So that upon the termination of the trust the entire trust estate would vest in Anna B. Hunt's four children, and the three children who executed the mortgage conveyed their interest in the trust property to secure the payment of the amount secured.

I can find nothing in this instrument which, either directly or by necessary implication, assigned or attempted to assign the future income from the trust property to accrue to Anna B. Hunt during her life. The whole transfer relates to the real and personal estate and all other of the trust estate comprised in and subject to the trust to continue during Anna B. Hunt's life. It is the trust estate that is subject to the trust that is assigned and transferred to the mortgagee, and full effect can be given to every covenant and agreement in this instrument by construing it as transferring the interest of those executing it in the remainder, and excluding from the effect of the mortgage, which it nowhere attempts to assign or transfer, the income upon the trust property during the continuance of the trust. After default. had been made in the payment of the amount loaned, the plaintiff commenced an action at law in the courts of England to recover the amount 119 N.Y.S.-2

of the loan. The mortgagors appeared in that action, interposed an answer, and there resulted a money judgment in favor of the plaintiff for the amount due with interest. That judgment is set forth in the complaint and was proved upon the trial, and, as I understand it, the learned trial judge held that it was a binding adjudication, both upon those parties to it and the trustees who were not parties to that action as to the effect of this mortgage. Upon default in the payment of the amount of this loan to secure which this mortgage was given, undoubtedly the mortgagee had an action to foreclose the mortgage, in which case, under a proper judgment, the interest of the mortgagors in the property mortgaged could have been sold and the proceeds applied to the payment of the indebtedness; but to such an action the trustees would be neither necessary nor proper parties, or the mortgagee as a creditor of the mortgagors could, upon having exhausted his remedy át law, have commenced a creditor's action to have applied to the payment of his debt the equitable rights and interest of the mortgagors. But the plaintiff has not commenced either of these actions. He has apparently seen fit to treat this mortgage as an absolute transfer to him of the interest of all of the mortgagors in this trust, and commenced this action to recover from the trustees so much of the trust property as will discharge the amount of his demands.

In a creditor's action it is undoubtedly the rule that judgment against the debtor is conclusive evidence to establish the existence and amount of the loan from the debtor to the creditor. The cases upon this question are reviewed in Nicholas v. Lord, 121 App. Div. 924, 106 N. Y. Supp. 1139, affirmed by the Court of Appeals in 193 N. Y. 388, 85 N. E. 1083; but what was established by the English judgment, and all that was established by it, was the existence and amount of the debt of the mortgagors to the mortgagee. In Nicholas v. Lord the debtor transferred certain property to trustees in trust to pay any just debts which the grantor then owed. The action was brought against the trustees to recover a debt which the debtor then owed and which has been established in an action in this state by a judgment in favor of the plaintiff against the transferrer of the property; and it was held that the recovery of that judgment was conclusive evidence as to the existence of the debt and its amount as against the trustee. Undoubtedly, in an action to foreclose this mortgage, the English judgment would be conclusive evidence that the mortgagors were indebted to the plaintiff, and as to the amount of the indebtedness and in a judgment creditor's action to reach the equitable assets of a judgment debtor the English judgment would be conclusive evidence to the same extent. It seems to me, however, that this action cannot be sustained as a creditor's action. It is not alleged in the complaint, nor is it claimed, that the plaintiff has exhausted his remedy at law against the defendants. No judgment has been recovered in this state against the defendants, and no judgment has been recovered in France, where the debtors reside. A judgment creditor's action cannot be founded upon the English judgment, for the debtor did not reside there, and assumably had no property there; and in no case has it been held that a judgment recovered against a debtor in a foreign country in which the