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them. If he sails with the boat, he is called a "supercargo"; but he has no authority over the goods during the voyage. His authority attaches only when the goods are landed. If he has to do with goods sent to a foreign country, and handles goods there, or sails with the vessel, he is called a "foreign factor." 19 Cyc. 115; Joyce on Insurance, vol. 2, § 624; Bouvier's Law Dictionary.

In the case at bar neither the boat nor the cargo were ever intrusted to the insurance agents. All that the plaintiff did was to place the bill and the policies in their possession, with instructions to collect it for the plaintiff, and the money was paid to them by the insurance companies simply for the purpose of turning it over to the plaintiff. Instead of being foreign factors, they were simply insurance agents and brokers acting within the well-known scope of their authority. I think it clear, therefore, that they did not come within the exception referred to in the opinion in Wood v. Young, supra.

The next point of the appellant is that by the custom of the marine trade the defendant was acting in a fiduciary capacity. It is undoubtedly true that the defendant occupied a position of trust and confidence, and that is always true in any case of agency, where a party places confidence in the one acting for him as agent; but that does not place every agent who has the confidence of his principal, and who is trusted by his principal, in the same category as an attorney at law or a foreign factor, so that a demand is necessary before an action may be brought against him.

The third point of the appellant is that, the defendants being lawfully in possession of the money collected under the "sue and labor" clause, a demand was necessary before suit could be brought, and cases are cited to the effect that where one comes lawfully into possession of property he cannot be charged with conversion thereof until after demand and refusal; such holdings being based upon the ground that the sole object of the demand is to convert an otherwise lawful possession into an unlawful one. In such a case the refusal furnishes the evidence of the conversion. The plaintiff urges, therefore, that no action could have been brought by the plaintiff against the defendant until the demand had been made, and that therefore the statute of limitations did not run. Under the statute the action must be commenced within six years after the cause of action has accrued (Code Civ. Proc. §§ 380, 382), and this period of limitation must be computed from the time of the accrual of the right to relief by action. The question here is therefore: When did a right of action accrue to the plaintiff against the defendant? It is urged by the appellant that it did not accrue until the demand was made. It was held by the trial court that the right to bring the action accrued as soon as the money was received by the defendant. In that connection it should be noted that this is an action for breach of contract, and not an action for fraud.

It is conceded that section 382 of the Code of Civil Procedure, the six-year statute of limitation, applies in this case, unless section 410 applies, for the reason that the statute did not begin to run until the demand was made. The respondent claims, however, that at most it was an action for money had and received, that it was not based on

(184 N.Y.S.)

fraud, and that there was no express trust which required a demand to terminate it, and that the money, when collected, was immediately payable to the plaintiff. As stated before, the claim of the appellant is that there was a trust relationship which entitled the defendant to hold the money in question, and that the defendant was rightfully in possession of the money, and that the plaintiff could not collect it until after a demand was made; that therefore the statute of limitations did not commence to run until the plaintiff discovered that the defendant had collected the money and held it in its possession. Such contention is based on section 410 of the Code of Civil Procedure, which reads as follows:

"Where a right exists, but a demand is necessary to entitle a person to maintain an action, the time, within which the action must be commenced, must be computed from the time, when the right to make the demand is complete, except in one of the following cases:

"1. Where the right grows out of the receipt or detention of money or property, by an agent, trustee, attorney, or other person acting in a fiduciary capacity, the time must be computed from the time, when the person, having the right to make the demand, has actual knowledge of the facts, upon which that right depends."

It has been held, however, repeatedly, that where money is received by one for another, under circumstances which make it the duty of the one receiving the money to pay it over, an action for money had and received may be brought to recover such sum of money without a demand, and the statute of limitations begins to run from the date of the receipt of the money. Mills v. Mills, 115 N. Y. 80, 21 N. E. 714. However, if there is an express subsisting trust, the statute does not begin to run against the beneficiary until the trustee has openly repudiated the trust. This rule, however, is not applicable to a trust ex maleficio, and applies only to express trusts. Lammer v. Stoddard, 103 N. Y. 672, 9 N. E. 328.

The case of Wood v. Young, supra, seems to be directly in point. In that case the plaintiff executed to her half-brother, the defendant's testator, a power of attorney authorizing him to collect the amount of an insurance policy held by her upon the life of her deceased husband. He collected the money and, without the consent of the plaintiff, appropriated it, and never accounted for it. Ten years after, the action was brought to recover the money. It was held that the statute of limitations applied, and that no trust or fiduciary relation existed between the parties, growing out of their relationship, which required a demand or actual knowledge of the facts by the plaintiff before the right of action accrued; that the only legal relation between the parties was that of debtor and creditor. Judge O'Brien said in his opinion: "The deceased had received from the insurance company moneys that belonged to the plaintiff by her direction and authority. It was the ordinary case of the receipt of money by one to and for the use of another, in which the duty rests upon the party receiving the money, from the moment of its receipt, to pay it over to the party for whose use it was received. It was the plaintiff's money. The deceased had no lien upon it, no right to retain it, nor any trust duty to discharge in respect to it. The law imposed upon him the obligation to pay it over to the plaintiff as soon as received, or at least within a reasonable time. There was nothing in the circumstances under which

the money came to the hands of the testator from which the right or duty can be implied to hold it until actually called for by the owner. The obligation of the party who has received the money in such cases is to pay it over, and his liability in an action to recover the same, without any demand before suit, has been firmly settled by a long line of cases that cannot be distinguished from this by any sound distinction [citing many cases]. The case of an attorney at law or a foreign factor is, perhaps, an exception to this general rule."

In Glover v. National Bank, 156 App. Div. 247, 141 N. Y. Supp. 409, it was held that the right of action against plaintiff's agent for failure to discharge his duty is not based upon fraud, and that the statute of limitations begins to run from the omission, and not from the time when the plaintiff discovered it. See, also, Campbell v. Culver, 56 App. Div. 591, 67 N. Y. Supp. 469; Libby v. Van Derzee, 80 App. Div. 494, 81 N. Y. Supp. 139, affirmed 176 N. Y. 591, 68 N. E. 1119, motion for reargument denied 177 N. Y. 567, 69 N. E. 1125.

[3] I think it clear that no fiduciary relation existed, that a demand was not necessary before an action could be brought, that there was no express trust, and that the statute of limitations cornmenced to run from the time that the defendant received the money. I do not think that the cases cited by the appellant hold anything to the contrary. It therefore follows that the judgment should be affirmed, with costs. Judgment affirmed, with costs. All concur.

(112 Misc. Rep. 231)

EMMONS v. WEIHMAN et al.

(Supreme Court, Special Term, New York County. June 15, 1920.)

1. Wills 634 (10)—Child of deceased remainderman held entitled to remainder.

Where one paragraph of a will devised property to a daughter for life, and in case of her decease without issue to the testator's two sons, and in a later paragraph provided that in the case of the decease of either of testator's children, leaving issue, such issue should receive the share of the deceased parent, a child of one of the sons, who died before the life tenant, is entitled to the remainder.

2. Wills 469-Paragraph at end of will may operate on all preceding paragraphs.

The fact that the last paragraph of the will, which provided that, in case of death of either of testator's children leaving issue, such issue should receive the share of the deceased parent, as applied to one preceding paragraph will give the issue of deceased children vested interests as to some of the property, and as applied to another paragraph will have a different effect, does not prevent its application to all preceding provisions. Action by James M. Emmons against Martha Emmons Weihman. and others. Judgment directed in favor of defendant Weihman.

Hill, Lockwood & Redfield, of New York City (Robert L. Redfield, of New York City, of counsel), for plaintiff.

Cannon & Cannon, of New York City (Wilfrid N. O'Neil and Charles

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(184 N.Y.S.)

M. Cannon, both of New York City, of counsel), for defendant Weih

man.

Stewart & Shearer, of New York City (W. A. W. Stewart, of New York City, of counsel), for defendant United States Trust Co.

GIEGERICH, J. This action is brought for the partition of real estate, and presents as its sole question the construction of the will of the testator, through whom the entire title is derived. The controversy relates to the one-half share which would have gone to Francis R. Emmons, had he survived. The fourth paragraph of the will of Francis Emmons, through whom the title comes, provides as follows: "Fourth. I give and bequeath the rents, issues and income of the house and lot number 130 West Forty-Eighth street to my said daughter, Maria Louisa Emmons, during her natural life, to be paid to her upon her sole and separate receipt and not otherwise, and upon her decease leaving issue her surviving I give and devise the said house to her said issue share and share alike, and in case of her decease without issue her surviving I give and devise the said house and lot to my two sons, Francis Robbins and James McGregor."

The seventh paragraph is as follows:

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"Seventh. I order and direct, and it is my will, that in case of the decease of either of my children leaving issue such issue shall take and receive the same under this my will as their deceased parent would have taken if living."

Francis Emmons, the testator, died on March 28, 1885, leaving him surviving three children, James McGregor Emmons, Francis Robbins Emmons, and Maria Louisa Emmons. Maria Louisa Emmons died on October 1, 1919, unmarried and without issue. Francis Robbins Emmons predeceased her, having died on April 10, 1918, leaving a will which was admitted to probate and of which the defendant the United States Trust Company is the executor.

[1] The question presented is whether, under the above-quoted provisions of the will of Francis Emmons, his son, Francis Robbins Emmons, took a vested interest in remainder in the premises in question, and which is now represented by his executor and trustee, or whether his interest was divested by his death, before the death of Maria Louisa Emmons, the life tenant, and passed to his daughter, the defendant Martha Emmons Weihman. There seems to be no substantial dispute but that, under paragraph fourth, taken alone and without. reference to paragraph seventh, the death referred to means death before the expiration of the life estate, and not death before the testator. Mullarky v. Sullivan, 136 N. Y. 227, 32 N. E. 762; Matter of Denton, 137 N. Y. 428, 33 N. E. 482; Lyons v. Ostrander, 167 N. Y. 135, 60 N. E. 334; Marsh v. Consumers' Park Brewing Co., 220 N. Y. 205, 115 N. E. 513.

Under that rule of construction the defendant executor claims that the remainder in question vested in Francis Robbins Emmons subject to being divested by the birth and survival of issue of Maria Louisa Emmons, the life tenant, and that as she died without issue that share now belongs to the defendant executor and trustee of the last will and testament of Francis R. Emmons. The addition of paragraph

seventh precludes this meaning, however, as I construe it. The defendant Weihman survived her father and survived the life tenant, and therefore took the share which her father would have taken if living at that time; that is, at the time of the expiration of the life

estate.

[2] The defendant executor argues that this construction is not permissible, because it would make paragraph seventh mean one thing when applied to paragraph fourth, and another when applied to paragraph sixth, which latter paragraph makes immediate and absolute gifts, and in which the event of survivorship referred to must be the death of the testator. I can see no difficulty in such a result, however. On the contrary, that situation in this or any other similar case would furnish a ground for putting the direction in question in a separate paragraph and at the end of the will. By such a method the matter is taken care of for the entire will, however varied and numerous might be the provisions for the beneficiaries named.

Some gifts might be made to go into possession of the beneficiaries at the death of the testator; others at the death of a life tenant, or of a trust beneficiary, or upon the occurrence of some other event. In any such case I do not think it a strange, but rather a natural and draftsmanlike, thing to do to follow the method here employed. If the testator intends under all parts of his will that the issue of any deceased beneficiary named shall take the share their parent would have taken if living, then a single statement to that effect is better than numerous repetitions. In the case before us, I do not think there is any room for doubt that such was the intention of the testator, because the statement is made in a separate paragraph, separately numbered, and placed at the end of the will.

I have passed upon the requests of the defendants, whether presented as such strictly or in the form of a proposed decision, and have signed the decision and interlocutory judgment as presented by the plaintiff, because they embody all the findings and conclusions made by me in accordance with the views above expressed.

Judgment accordingly.

(112 Misc. Rep. 235)

A. O. ANDERSEN & CO., Inc., v. LAMBORN et al.

(Supreme Court, Special Term, New York County. June 24, 1920.)

1. Assignments 12-Order by shipowner to pay part of freight to charterer held assignment pro tanto.

An order by a shipowner to those for whom it had agreed to carry a cargo of sugar to pay a stated portion of the rate to a charterer of the ship is an assignment pro tanto of the freight, not a demand on defendants to accept a new contractual relation for the carriage of goods with new parties.

2. Assignments

131-Complaint held to state payment of funds to assignor notwithstanding assignment.

Complaint which alleged a partial assignment by a shipowner to plaintiff, a charterer, for the freight earned under a contract with defendant For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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