Misc.] Supreme Court, May, 1911. securities by the defendant's testator himself; and, though the trust was constructive, the fraud was actual and morally reprehensible in the highest degree. Moreover, the court there points out that the testator was guilty of fraud in "1st, the original larceny; 2nd, the subsequent concealment of the stolen property and of its sale and the receipt of its proceeds," and the decision is expressly placed upon the second fraud (p. 272). The question in that case arose after a trial of the issues and proof of this fraud and the court did not hold that, under the allegations of the complaint, even in that action, a demurrer to a defense setting up the Statute of Limitations would be sustained. So far as the allegations of the complaint are susceptible of interpretation as allegations merely of constructive fraud, the opinion of Mr. Justice Brewer in Hayes v. McIntire, 45 Fed. Rep. 529, would seem applicable. "In a case in which the defendant is guilty of no moral wrong, has taken no part in any fraud or deceit, will equity seek to deprive him of the protection which the statute of the state casts around his possession, or will it recognize the wisdom of that legal protection and seek to uphold it? There was a time when statutes of limitation were looked upon with disfavor and when the courts delighted to seize upon any pretext for avoiding their force, but that time has passed, and now it is generally recognized that they are statutes of repose and ought to be upheld. A wise public. policy demands their recognition and forbids their evasion." The plaintiffs further urge that, since they are only remaindermen of the trust estate, their cause of action accrued only when the life tenant died. The conclusive answer to this contention is that they sue both as remaindermen and as assignees of the life tenant; and, since the defenses are pleaded only as partial defenses, they are not open to demurrer. In regard to the cause of action of the plaintiffs as remaindermen, the question of when the cause of action accrued seems somewhat doubtful. While it is well established that the right of a remainderman under a testamentary trust to sue a trustee appointed by will or a person who has in contemplation of law wrongfully assumed the duties of trustee accrues only when the remainderman becomes entitled to the Supreme Court, May, 1911. [Vol. 72. property (Putnam v. Lincoln Safe Deposit Co., 191 N. Y. 166), it does not follow that the same rule applies when the action is predicated upon a hostile interference with the trust estate and the trustee would have had a right to bring the action earlier. I do not think, however, that I should consider this question. Inasmuch as the complaint sets forth practically two causes of action, the defense is good as a partial defense if it can be raised against either one, and no decision on my part as to whether it would be good against the other would be conclusive upon the trial of the action. It remains, therefore, only to determine whether the sixyear or the ten-year limitation applies. The complaint sets forth a cause of action for moneys had and received. There are concurrent remedies for the wrongs alleged which may be obtained by actions at law or in equity. The equitable remedy of an accounting affords, perhaps, fuller relief; nevertheless the purpose of the accounting is merely to determine the amount for which the defendants may be held liable because of their conversion of plaintiffs' securities. "It seems to be settled, however, that the ten-year provision applies only to actions of which equity has exclusive jurisdiction, and that where the remedy in equity is merely concurrent with one at law the statute limiting the time for the commencement of the action at law is also applicable to the equitable remedy." Holt v. Hopkins, 63 Misc. Rep. 537, 540, and cases there cited. It follows that the demurrer to the first and second separate defenses must be overruled. The twelfth separate defense sets forth that there is a defect of parties defendant in that two persons who were copartners with the defendants at certain periods are not made parties to the action. It appears that, during the periods mentioned in the complaint, there were four successive copartnerships doing business under the firm name of W. H. Goadby & Co.; and, while the defendants were members in all the copartnerships, a third person was joined with them in two of the copartnerships. The defendants. claim that these persons should be joined as parties defendant, both because the suit is brought upon a copartnership obligation and is, therefore, upon a joint liability, and because Misc.] Supreme Court, May, 1911. the other partners would, in any event, be liable for contribution in an action by the defendants against them and should be made parties to the equitable action, in order that all controversies connected with the obligation sued upon may be litigated in one action. The complaint seeks to hold the defendants liable for the wrongful acts alleged to have been committed by the copartnership of which they were members. The basis of the action is the receipt for their own benefit of moneys belonging to the plaintiffs. Whether or not they individually participated in the conversion of these moneys is immaterial; as members of the firm they are responsible, jointly and severally, as principals, for all acts committed by their agents or partners. The plaintiffs have by their form of action waived the conversion and sue upon an implied contract of the defendants to hold the money wrongfully received by them for the benefit of the plaintiffs. The contract, however, is not a copartnership contract. It is implied not as an inference of fact of intent of the parties, but is implied by law despite the intent of the parties. The liability of the defendants as principals for the wrongful acts of their agents or partners is a joint and several liability, and the contract implied by law by reason of these acts is in my opinion also joint and several. The plaintiffs do not allege that the defendants as copartners have rightfully received their moneys and wrongfully refuse to account for them, as was the case in Isham v. Phelps, 54 N. Y. 673, and in Harris v. Schultz, 40 Barb. 315, but they seek to hold the defendants liable for moneys wrongfully received by themselves or their agents. In the first case, the obligation to account arises upon the breach of a joint obligation; in this case the obligation to account arises upon a breach of the contract implied from their wrong; and this obligation, like the wrong and the contract, is joint and several. Under the authority of Steele v. Leopold, 135 App. Div. 247; affd., 201 N. Y. 518, it may be that the defendants will be entitled to contribution from their copartners. It does not, however, necessarily follow that, for this reason, the copartners must be made parties defendant. The action is not Supreme Court, May, 1911. [Vol. 72. strictly equitable, but the plaintiffs have sought a remedy in equity in a case where the facts also gave them a right of action at law. The plaintiffs saw fit to bring their action against only certain of the parties against whom they would have a right of action; and, even if these other parties were brought in, their presence would not compel the court to adjudicate the question of a right to contribution or a recovery over as between them and the other defendants. Steele v. Leopold, supra, p. 259. The presence of the other parties would be only for the convenience of the defendants, for the plaintiffs make no claim against them. Possibly the defendants have a right to move that these parties should be brought in so that there may not be two litigations, but the granting of the motion would be within the court's discretion and their absence constitutes no defense to plaintiffs' cause of action. Demurrer to the twelfth defense should be sustained. Ordered accordingly. JOHN J. DANAHER, Plaintiff, v. CATHERINE M. E. HILDEBRAND and Another, as Executors, Defendants. (Supreme Court, New York Special Term, May, 1911.) Contracts Performance of contracts - Reference of question as to performance to third person - Approval by third person as condition precedent. Conversion (equitable) - Reconversion - Election or intention to reconvert. Wills Interpretation and construction -Administration of estate and execution of powers and trusts and compensation therefor - Rules and implications — Imperativeness of power implied. Where a testator directed the restdue of his estate to be kept undivided and undistributed until the death of his wife to whom he gave the entire income so long as she remained his widow, and upon her remarriage gave her half the income and the other half to his children, and on her death gave the said residue to his children and their descendants, the issue of any deceased child to take the share which its parent would have taken, and authorized Misc.] Supreme Court, May, 1911. his executors to sell his real property and invest the proceeds in permanent securities, held, that the power of sale was not a naked power but could be exercised by the surviving executors, and that one of the testator's grandchildren could not elect to take his share instead of the proceeds during the life of the life-tenant. without the consent of the other contingent or conditional remaindermen. Where the parties to a contract for the sale of real property contract for a determination of the marketability of the title and the limitation of the purchaser's damage, if unmarketable, to the return of his deposit and the reasonable expenses of examining the title, equity will not enforce a forfeiture unless and until within a reasonable time there has been a determination of the question of marketability. ACTION for the specific performance of a contract for the sale of real estate. Henry M. Bellinger, Jr., for plaintiff. Decker, Allen & Storm, for defendants. GUY, J. Action for the specific performance of a contract for the sale of real estate. Defendants held the real estate in trust as the surviving executors of a testator who died in 1891. The decedent's will, after giving certain trust legacies not here involved, directed that all the rest, residue and remainder of his estate should be kept undivided and undistributed until his wife's death. He gave her the whole net income so long as she remained his widow; upon her remarriage one-half of the income was bequeathed to her and the other half to his children, share and share alike, "and upon my wife's death I give, devise and bequeath all of the rest, residue and remainder of my estate, real and personal, unto all of my said children, their heirs and personal representatives forever, the issue of any deceased child to take the share which their parent would have taken." The testator also authorized his executors to sell all or any part of my real estate in their discretion, and to give deeds therefor, and to invest the proceeds thereof in bonds or stocks of the United States or of the State of New York or City of New York, and 66 |