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Hun.]

FOURTH DEPARTMENT, FEBRUARY TERM, 1895.

that said defendant, as executrix of said will of Truman C. Gilchrist, deceased, or the estate of said Truman C. Gilchrist, deceased, is indebted to said plaintiff as administratrix with said will annexed of the estate of said William Gilchrist, deceased, therefore, said claim is made res judicata by said judgment, and said judgment is a bar to action thereon and therefor.

"Fourth. The defendant above named, Harriet E. Gilchrist, as executrix of the will of Truman C. Gilchrist, deceased, is entitled to judgment herein against the above-named plaintiff, Elizabeth Wilcox, as administratrix with the will annexed of the estate of William Gilchrist, deceased, dismissing the complaint herein upon the merits, and for the costs and disbursements of this action."

Judgment was directed for the defendant. The plaintiff excepted to the fourth, fifth and sixth findings of fact, and to the first, third and fourth conclusions of law. Afterwards, and on February 17, 1894, a judgment was entered in accordance with such decision, dismissing the plaintiff's complaint upon the merits, with costs. From this judgment the plaintiff appealed.

F. D. Gardner and Homer Weston, for the appellant.

W. H. Kenyon, for the respondent.

MARTIN, J.:

It becomes obvious from a review of the proceedings in this action that the Special Term awarded the judgment herein upon the grounds that the plaintiff could not maintain this action on the theory that a trust was created by a delivery to T. C. & W. Gilchrist of the check in question, and the agreement under which it was delivered, and that the judgment entered in the proceeding between the parties under the statute relating to claims against the estate of deceased persons was a bar to this action, so far as it was based upon the claim that the estate represented by the defendant was indebted to her or the estate she represented for the money received by the defendant's testator or by the firm of which he was the surviving partner. It follows, therefore, that the judgment should be reversed, unless it can be sustained upon those grounds.

Thus, we are led first to the consideration of the question whether this action can be maintained on the ground that the money in ques

FOURTH DEPARTMENT, FEBRUARY TERM, 1895.

[Vol. 85. tion was placed in the hands of the firm of T. C. & W. Gilchrist by William Gilchrist, Sr., in trust, to be accounted for at the death of Betsey Gilchrist. It is essential, to constitute a valid trust, that the instrument or agreement by which it is sought to be created should show a sufficient intention to create a trust, and a beneficiary that is named or can be ascertained. (4 Kent's Com. [11th ed.] 305, n. 2.) This doctrine seems to be recognized if not affirmed in Gilman v. McArdle (99 N. Y. 458). In Holland v. Alcock (108 N. Y. 312, 318) RAPALLO, J., said: "The absence of a defined beneficiary is, as a general rule, a fatal objection to any attempt to create a valid trust. It is said by WRIGHT, J., in Levy v. Levy (33 N. Y. 107), that if there is a single postulate of the common law established by an unbroken line of decision it is that a trust without a certain beneficiary, who can claim its enforcement, is void, whether good or bad, wise or unwise."" The same doctrine was held in Fosdick v. Town of Hempstead (125 N. Y. 581, 591), where the Holland case was cited, and PECKHAM, J., said that the opinion of RAPALLO, J., in that case left nothing to be added on that subject, and that "that case leaves the doctrine no longer in doubt that to constitute a valid trust there must be a defined beneficiary, and the absence of such is, as a general rule, fatal to the validity of a testamentary trust." (See, also, Tilden v. Green, 130 N. Y. 29.) Hence, it would seem that the allegations of the complaint were insufficient to sustain a recovery upon the theory of a trust.

Moreover, if, as claimed by the plaintiff, there was an express trust created by the deposit of the check in question, or the money received thereon, it would not descend to the next of kin or personal representative of the trustee, but upon his death would vest in the Supreme Court under chapter 185 of the Laws of 1882, which provides: "Upon the death of a surviving trustee of an express trust, the trust estate shall not descend to his next of kin or personal representatives, but the trust, if unexecuted, shall vest in the Supreme Court, with all the powers and duties of the original trustee, and shall be executed by some person appointed for that purpose under the direction of the court. But no person shall be appointed to execute said trust until the beneficiary thereof shall have been brought into court by such notice and in such manner as the court may direct." It follows, we think, that if a valid trust had been created

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FOURTH DEPARTMENT, FEBRUARY TERM, 1895.

under this statute the trust estate would not descend to or vest in the plaintiff, but would vest in the Supreme Court; that a new trustee should have been appointed who alone could have maintained an action (Matter of Petition of Waring, 99 N. Y. 114; Matter of Carpenter, 131 id. 86), and that the Special Term correctly held that the plaintiff could not maintain this action on the ground that a trust was created.

This brings us to an examination of the question whether the proceedings instituted under the statute by the plaintiff against the defendant for the enforcement of the claim made therein were a bar to this action, if regarded as an action to recover the moneys in question, independent of the claim that they were delivered to the firm of T. C. & W. Gilchrist in trust.

The proceeding which resulted in the judgment which the court held was a bar to this action was instituted under and in pursuance of the provisions of sections 35, 36 and 37 of article 2, title 3, chapter 6, part 2 of the Revised Statutes. It is provided by section 37 that where the justice of a claim presented is doubted and a reference is had, the judgment of the court upon the confirmation of the report of a referee therein shall be valid and effectual in all respects as if the same had been rendered in a suit commenced by the ordinary process. Therefore, under the provisions of the statute, the former judginent between these parties had the same binding effect and is to be treated in all essential respects the same as though it had been entered in an ordinary action. The parties to the former action or proceeding were the same as in the case at bar. It was instituted to recover the same moneys which were sought to be recovered in this action. The only pretended difference between the former proceeding and this action is that the original action or proceeding was sought to be maintained and the debt in question recovered upon proof that the defendant's testator was individually liable therefor by reason of his having received the money in question, while this action is sought to be maintained upon proof that he was liable as surviving partner of the firm of T. C. & W. Gilchrist. As we have seen, the report of the referee, which is a part of the judgment roll in the former proceeding, discloses that it was tried upon the theory that the claim there sought to be recovered was a liability incurred to the plaintiff's testator by Truman C. Gil

FOURTH DEPARTMENT, FEBRUARY TERM, 1895.

[Vol. 85.

christ individually, and not by the firm of which he was a member. From this finding of the referee it must, I think, be assumed that upon the former trial the plaintiff did not in fact attempt to prove any liability against the defendant upon the ground that her testator was the surviving partner of the firm of T. C. & W. Gilchrist, and, as such. liable for the debt in question. That upon such trial the plaintiff might have proved a cause of action against the defendant upon the theory of her testator's liability as surviving partner, there can, I think, be no doubt. In Nehrboss v. Bliss (88 N. Y. 600, 604), where the question of the rights of a surviving partner were discussed, it was in effect said that upon the death of a partner the legal right under the firm contracts or causes of action and the sole right to collect the partnership debts remained in the survivor (Viner's Abr., Partners, D; 1 Lindley on Part. 505; Voorhis v. Child's Exr., 17 N. Y. 354), and vested so effectually effectually that upon his death it would have devolved upon his personal representative, who alone could sue upon it (1 Williams on Exrs. 1585; Copes v. Fultz, 1 Sm. & Mar. 623); that in such a case the right of action would so completely vest in the survivor that a demand against him in his own right might have been set off in diminution of his claim as surviving partner (Slipper v. Stidstone, 5 T. R. 493); that a débt due from the plaintiff, as surviving partner, to the defendant might be set off against a debt due from the defendant to the plaintiff in his own right (French v. Andrade, 6 T. R. 582); that as surviving partner he might join in one action a count for a debt due him in his own right and one due him as survivor (Adams v. Hackett, 27 N. H. 289), and that a plaintiff in an action charging him in his own right might recover a demand due from him individually and another due from him as surviving partner. (Richards v. Heather, 1 B. & Ald. 29.) In the Richards case it was expressly held by the Court of King's Bench that "Under a declaration containing only one set of counts, charging the defendant in his own right, the plaintiff may recover one demand due from the defendant individually, and another due from him as surviving partner." In Ferris v. Burrows (34 Hun, 104) it was held that upon the judicial settlement of his accounts an executor was entitled to set off against a legacy a debt due to the testator from a firm of which the legatee was, at the time of the

Hun.]

FOURTH DEPARTMENT, FEBRUARY TERM, 1895.

death of the testator, the sole surviving partner. This case affirmed (99 N. Y. 616). In Miller v. Receiver of the Franklin Bank (1 Paige, 444) Chancellor WALWORTH said: "Thus, a surviving partner is, in equity, only a trustee for himself and the representatives of the deceased partner. Yet he may sue or be sued in his own name, and debts due to or from him in his own right may be offset against debts due to or from him as surviving partner." In Goelet v. McKinstry (1 Johns. Cas. 405) it was held that if one of two partners in trade purchase goods for both, and one of them dies, an action of indebitatus assumpsit may be brought against the survivor, without taking notice of the partnership or the death of one and the survivorship of the other. In Hyat v. Hare (Comberbach, 383) HOLT, Ch. J., said: "If there be two partners in trade, and one of them buy goods for them both, and the other dieth, the survivor may be charged by indebitatus assumpsit generally, without taking notice of the partnership, or that the other is dead and he survived."

The doctrine of these authorities renders it obvious that the plaintiff could have proved on the former trial a cause of action and recovered in that proceeding against the defendant, as the represent-ative of the surviving partner of the firm of T. C. & W. Gilchrist, under her claim as presented, unless it had been paid or released. Thus the precise question to be determined is whether, as the right of recovery now insisted upon by the plaintiff could have been litigated and determined upon the former trial, the judgment in that case was a bar to a second action.

The rule seems to be well settled in this State that a former judg ment of a court of competent jurisdiction is final and conclusive between the parties, not only as to the matters actually determined, but also as to every other matter which the parties might have litigated and had decided essentially connected with the subject-matter of the litigation within the purview of the original action either as matter of claim or defense. (Embury v. Conner, 3 N. Y. 511, 522; Doty v. Brown, 4 id. 71; Clemens v. Clemens, 37 id. 59, 74; Dunham v. Bower, 77 id. 76, 79; Smith v. Smith, 79 id. 634; Jordan v. Van Epps, 85 id. 427, 436; Patrick v. Shaffer, 94 id. 423, 430; Pray v. Hegeman, 98 id. 351, 358; Griffin v. Long Island R. R. Co., 102 id. 449, 452; Goebel v. Ila, 111 id. 170,

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