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and 122 New York State Reporter will, became the owners of, and had the legal title to, the undivided two-thirds part of said real estate, and entitled to the undivided two-thirds of the personal estate of the said Henry F. Burdick, deceased. The said plaintiffs further state that at the time of the death of the said Henry F. Burdick, deceased, there was deposited, and for many years prior thereto had been deposited, in the soil upon the real estate hereinbefore described, the following property, being very valuable earthenware, to wit.

The said plaintiffs further allege that on or about the 28th day of March, 1903, the said defendant wrongfully and unlawfully took said property out of the soil where it was deposited upon said farm, and wrongfully and unlawfully took the above-described property into his possession, and wrongfully and unlawfully detains the same from the said plaintiffs. The said plaintiffs further allege that at the time said defendant wrongfully and unlawfully took the said property into his possession the said plaintiffs were the owners thereof, as hereinbefore stated, and were entitled to the immediate possession thereof. That on or about the 5th day of May, 1903, the said plaintiffs demanded of the said defendant that he deliver to them the possession of said property as the owners thereof, which the said defendant refused to do.” The complaint demands judgment for the possession of said personal property and for damages, and, in case possession of said personal property cannot be had. then for the value thereof and for damages. The defendant demurred to said complaint on the following grounds: "First. That there is a misjoinder of parties plaintiff herein, in that it appears by said complaint that the plaintiffs, Arthur H. Burdick and Edgar F. Burdick, as executors of the last will and testament of Henry F. Burdick, deceased, have no cause of action upon, and no interest in, the matters alleged in said complaint against this defendant. (2) And that there is a misjoinder of parties plaintiff herein, in that it appears by said complaint that the plaintiffs, Arthur H. Burdick and Edgar F. Burdick, if having any title to the earthenware described in the complaint and sought to be recovered herein, are tenants in common thereof; and as such tenants in common the said plaintiffs cannot join in maintaining this action for the recovery thereof. Second. That there is a defect of parties plaintiff herein, in that it appears by said complaint that, if the plaintiffs have any title or right of possession to the earthenware described in the com. plaint, and sought to be recovered herein, then some person or persons other than the plaintiffs, whose name or names is or are undisclosed, is the owner or are the owners of an undivided one-third part of said earthenware, and is or are not joined as plaintiff or plaintiffs, defendant or defendants, herein; and such owner or owners of such one-third part of said earthenware is a necessary party, or are necessary parties plaintiff herein. Third. That the complaint herein does not state facts sufficient to constitute a cause of action." The issue of law joined by the service of the demurrer was tried, and said demurrer overruled. This appeal is taken from the interlocutory judgment overruling said demurrer.

Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.

Adon P. Brown, for appellants.
E. W. Cushman (Joseph Mason, of counsel), for respondent.

CHASE, J. We think that the demurrer should have been sustained. The complaint does not contain an unqualified allegation of ownership or right to the possession of the earthenware in the plaintiffs. The allegation of ownership is, “Said plaintiffs were the owners thereof, as hereinbefore stated.” Even this allegation does not relate to the time of the commencement of the action. Code Civ. Proc. § 1720. The allegations relating to the ownership and right to the possession of the earthenware, and as to the defendant's taking the same wrongfully and unlawfully as against the plaintiffs, are conclusions of law on the facts in the co nplaint stated. The

sufficiency of the complaint must be determined by the facts stated, and not by conclusions. Lange v. Benedict, 73 N. Y. 12, 29 Am. Rep. 80; Savage v. City of Buffalo, 50 App. Div. 136, 63 N. Y. Supp. 941. Where an allegation contained in a complaint is a conclusion from the other facts therein stated, it is not to be deemed admitted by a demurrer. Rector, etc., v. Huntingdon, 82 Hun, 125, 31 N. Y. Supp. 91.

The facts stated in the complaint are, briefly, that the plaintiffs’ testator died March 23, 1903, and that at the time of his death he was the owner of certain real property upon which “there was deposited, and for many years prior thereto had been deposited, in the soil upon the real estate” certain earthenware; that said testator, by his will, named the plaintiffs as his executors, and that said will has been admitted to probate, and that letters testamentary have been issued to the plaintiffs; that plaintiffs, "under and by virtue of said will, became the owners of and had the legal title to the undivided two-thirds part of said real estate, and entitled to the undivided two-thirds of the personal estate” of said testator; that defendant, on March 28, 1903, took said earthenware out of the soil, where it was deposited upon said farm, and took the same into his possession, and retains the same, and that on May 5, 1903, he refused to deliver it to the plaintiffs on demand. The complaint does not disclose by whom, nor under what circumstances, said earthenware was deposited in the soil of said real property. It may, so far as appears, have been deposited therein by the defendant, or by some one under whom he claims. Whether it was so deposited by some one other than the owner of the real property, or by an owner of the real property, or under an agreement with such owner of the real property, by which it was there to remain for an express purpose or for a prescribed period of time is left wholly to conjecture. So, too, the complaint fails to show whether the owner of the earthenware is known, or whether it had been so deposited such a length of time that all knowledge thereof and of the person who had thus deposited it and of his personal representatives had been lost to memory. The complaint is wholly barren of any facts relating to the history and ownership of said earthenware. The plaintiffs, as the personal representatives of the testator, and individually as the owners of an undivided interest in the real and personal property left by the testator, base their ownership of said earthenware upon the simple fact that it was deposited for many years in said real property so owned by their testator at the time of his death. Such claim on the part of the plaintiffs makes it necessary for us to consider briefly the ownership and the rights of finders of personal property.

An unqualified owner of personal property is entitled to the possession thereof. Such ownership may be transferred by sale, by gift, or by descent. If personal property is thrown upon the surface of the soil and abandoned, it will become the property of the person who finds and appropriates it, without reference to the ownership of the real property upon which it is found or from which it is taken. If personal property is lost, it becomes, as against all per

and 122 New York State Reporter sons other than the owner thereof, the property of the finder who appropriates it. See White v. Daniels (Sup.) 57 N. Y. Supp: 305; If personal property is deposited beneath the surface of the soil, and so left until the place where it is so deposited is forgotten, and the owner thereof, if living, or his personal representatives, if he is dead, cannot be found, such personal property so in the possession of the owner of the soil becomes as a part of the soil the property of the owner of the real property, and such personal property passes by gift, sale, or descent of said real property as a part thereof. When it is discovered and removed from the soil, as against every one but the owner it becomes the personal property of the owners of such real property, and not the property of the finder thereof.

The language of the court in the case of Elwees v. Briggs Gas Company, 33 Chancery Division English Law Reports, 562, is applicable to this case. In that case lessees of real property, in making an excavation, uncovered an ancient ship or boat some 2,000 years old. The action was brought by the owner of the real property against the lessees who had uncovered it, and the court say:

"The first question that does actually arise in this case is whether the boat belonged to the plaintiff at the time of granting the lease. I hold that it did, whether it ought to be regarded as a mineral or as a part of the soil within the maxiin above cited, or as a chattel. If it was a mineral or part of the soil in the sense above indicated, then it clearly belonged to the owners of the inheritance as part of the inheritance itself. But if it were to be regarded as a chattel, I hold the property in the chattel was vested in the plaintiff, for the following reasons: Being entitled to the inheritance, and in lawful possession, he was in possession of the ground; not merely of the surface, but of everything that lay beneath the surface down to the center of the earth; and consequently in possession of the boat.

The boat was embedded in the land. A mere trespasser could not have taken possession of it. He could only have come at it by further acts of trespass involving spoil and waste of inheritance. The plaintiff then being in possession of the chattel, it follows that the property in the chattel was vested in him. Obviously, the right of the original owner could not be established. It had for centuries been lost or barred, even supposing that the property had not been abandoned when the boat was first left on the spot where it was found. The plaintiff then had a lawful possession, good against all the world; and therefore the property in the boat. In my opinion it makes no difference in these circumstances that the plaintiff was not aware of the existence of the boat.

Further if it ought to be regarded as a chattel, the defendants did not acquire any property in the chattel by the mere finding as against the plaintiff who upon the grounds already stated was the owner of the chattel.”

The allegations of the complaint that said earthenware had been deposited in the soil of said real property for many years prior to the death of the plaintiffs' testator do not, as a matter of law, show that the plaintiffs are the owners nor entitled to the possession thereof. Even if the complaint contained allegations stating that the owner of the earthenware so deposited could not be found, it would nevertheless appear upon the face of the complaint that at the time of the testator's death the earthenware remained deposited in the soil, and that such title thereto as the testator then had passed with the real property to the persons to whom the real property was devised, and that the plaintiffs, as executors, obtained no interest therein; and if the title to said earthenware passed with the said real property to the devisees thereof, then it appears upon the face

of the complaint that the plaintiffs individually are but part of the owners in common thereof.

In any aspect of the case, we think that the defendant's demurrer must be sustained. The judgment should be reversed, with costs, and interlocutory judgment directed sustaining demurrer, with costs, with leave to plaintiffs to serve within 20 days an amended complaint on payment of costs of demurrer and of this appeal. All concur.

PALMER v. HALLOCK, (Supreme Court, Appellate Division, Third Department. May 11, 1904.) 1. ANTENUPTIAL AGREEMENT-RIGHT OF HUSBAND ON DEATH OF WIFE.

Under an antenuptial agreement by which T. agreed to pay H. $500, and H. agreed to receive it in consideration of her surrender of all dower and marital rights in T.'s property, and agreed that at her death any of the money then remaining should be paid back to T. or his heirs, H. became the absolute owner of the money, and any right of T. or his heirs to recover it rests solely on her promise, and not on any limitation of its use, or any trust, so that at her death, it being necessary for payment of

her debts, T. or his heirs have no claim on account thereof. Appeal from Special Term.

Action by Lois Ann Palmer, sole surviving heir at law of Abraham Travis, deceased, against Leander W. Hallock, executor of Belzora Travis, deceased. Judgment for plaintiff. Defendant appeals. Reversed.

Abraham Travis and Belzora Hallock, being about to marry, entered into a written antenuptial agreement under their hands and seals, and bearing date October 27, 1859, whereby, in consideration of the marriage, Travis agreed on his part to pay to her the sum of $500, and she, on her part, agreed to receive the same "as her jointure and in lieu and satisfaction of her whole dower in his estate forever'' ; "and it is further agreed between the respective parties, that is to say, viz., at the death of Belzora Hallock, the party of the second part, that the remainder of the money, if any then be left, that the said Belzora Hallock, the party of the second part, received from Abraham Travis, the party of the first part, at the making and delivery of the agreement, shall be paid back to Abraham Travis or his heirs." The $500 was paid and the marriage then solemnized. The parties lived together as husband and wife for many years, and Travis then died. Subsequently, on April 9, 1902, she died, leaving a last will and testament, of which this defendant is the executor. It appears from the evidence, very clearly, that such $500 was invested by said Belzora Travis, and kept invested down to the time of her death, in bond and mortgage or other securities. At that date it was invested in a bond and mortgage against one Charles D. Hallock for $3,500, but upon which there was then due and owing the sum of $1,000 only. The evidence clearly establishes that she, at the time of her death, understood and intended that such $1,000 included the $500 so paid her under the agreement aforesaid. Such bond and mortgage passed into the custody and control of this defendant as her executor, and he holds it as part of the assets of her estate. The defendant shows that the total assets of Mrs. Travis' estate, including the $1.000 unpaid upon said bond and mortgage, are $1,800, and that $600 of that consists of a judgment upon which execution has been returned unsatisfied, and which probably can never be collected. He also testified that the claims presented against her estate, in addition to the plaintiff's claim, were $1,400, or thereabouts. No other evidence as to the amount of such indebtedness is before us. Upon her death this plaintiff, who is the only heir at law of said Travis, demanded of the defendant payment of the $500 so left by the deceased, Mrs.

88 N.Y.8.-2

and 122 New York State Reporter Travis, and such payment was refused. The plaintiff thereupon brought this action to recover such sum, and asks that it be decreed a charge and first lien on Mrs. Travis' estate. The court below rendered judgment that the defendant held in his hands the sum of $500, which was received by Belzora Hallock under the antenuptial agreement, and "to which specific sum the plaintiff is entitled,” and decreed that the defendant pay the plaintiff the full sum thereof, with $27.83 interest accrued thereon from December 6, 1902. Such interest is charged against the defendant personally. Costs are also given against the defendant. From such judgment the defendant appeals to this court.

Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.

N. A. Calkins, for appellant.
D. H. Daley, for respondent.

PARKER, P. J. It seems clear that under the antenuptial agreement aforesaid Belzora Hallock became the absolute owner of the $500 which was paid to her by Travis. There is no reservation of that sum, or any part of it, by the terms of the agreement; nor is there any limitation, by its terms, as to the use to which she must put such money. It was paid to her as the consideration for her surrender of all dower and marital rights in Travis' property, and she was under no obligations whatever to refrain from expending it at once, or from applying it to whatever purpose she desired. There was no trust created by such agreement. There was an executory contract on her part that as to such portion of the $500 as should remain unexpended at the time of her death it should be paid over to said Travis or to his heir, but the right to recover such portion rested solely upon her promise, not upon any limitation of its use, nor upon any trust assumed by her concerning the same. Concede, for the sake of the argument, that as to so much of such $500 as remained unexpended a cause of action arose against her estate upon such promise, but I am at a loss to discover upon what theory Travis, or his heir, can claim preference over her other creditors in the enforcement of such claim. It is a well-settled rule of equity that:

"Where the defendant himself has a right to sell his interest in the trust fund in anticipation, and to use the proceeds of such sale as he pleases, equity requires that he should appropriate it to the payment of his honest debts ; and he must assign such interest to the receiver in a creditors' suit. The own. er of real or personal estate may create an interest in the rents and profits, or the income thereof, under the provisions of the Revised Statutes, in trust for the use or benefit of a third person, whom from improvidence or otherwise the donor does not think proper to intrust with the absolute disposition and control of his beneficial interest in the trust property, by anticipation. But neither law nor sound policy will allow an absolute and unconditional right to property to be vested in a person, which he may use and dispose of as he pleases, by anticipation or otherwise, but in relation to which property he may set his creditors at defiance by means of a mere nominal trust." Degraw v. Clason, 11 Paige, 136, 140.

See, also, Hallet v. Thompson, 5 Paige, 583; Wetmore v. Truslow, 51 N. Y. 338, 342.

In no event, therefore, could the parties, by any form of agreement which made Mrs. Travis the absolute owner of such $500, so control the disposition of any part of it after her death as to prevent its application to the payment of her debts. If at the time of her death the whole

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