Cases DETERMINED IN THE FOURTH DEPARTMENT AT GENERAL TERM, February, 1895. ELIZABETH WILCOX, as Administratrix with the Will Annexed of Trust-intention and beneficiary essential to -on the death of a trustee the trust It is essential, in order to constitute a valid trust, that the instrument or agreement by which the trust is sought to be created should show an intention to create a trust, and a beneficiary that is named or can be ascertained. The absence of a definite beneficiary is, as a rule, a fatal objection to any attempt to create a valid trust. Upon the trial of an action brought by the personal representative of a decedent it was alleged that the plaintiff's testator deposited with a firm, of which the defendant's testator was the surviving member, a sum of money in trust, to be accounted for upon the death of the wife of said donor, and the plaintiff sought to recover such amount. Held, that even if a valid trust had been created, the plaintiff could not maintain the action inasmuch as under the statute (Chap. 185, Laws of 1882), upon the death of the trustee of an express trust, the trust vests, not in the personal representative of the deceased trustee, but in the Supreme Court, with all the powers and duties of the original trustee. A former judgment 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 essentially connected with the subject-matter of the litigation and within the purview of the original action, either as matter of claim or defense, which the parties might have litigated and have had decided. HUN-VOL. LXXXV. 1 85 1 3ap292 FOURTH DEPARTMENT, FEBRUARY TERM, 1895. [Vol. 85. A claim was filed by the personal representative of an alleged creditor against the estate of his debtor, which claim was rejected by the personal representative of the alleged debtor, and a reference was ordered-under the statute which resulted in a judgment being entered dismissing the claim in question. Subsequently an action was brought by the personal representative of the alleged creditor against the personal representative of the alleged debtor upon the same claim in question, the only difference between the former proceeding and the latter action being that it was sought in the former to charge the alleged debtor with individual liability for the claim in question, while in the latter action it was sought to charge him with liability as the surviving partner of a firm of which he was a member. Held, that the issue was the same in both cases, namely, whether the alleged debtor's estate was liable by reason of his having incurred the liability as an individual or as surviving partner of a firm of which he was a member; That this question might have been litigated and determined in the former action, and that the former judgment was a bar to the latter action. APPEAL by the plaintiff, Elizabeth Wilcox, as administratrix with the will annexed of William Gilchrist, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 17th day of February, 1894, upon the decision of the court rendered after a trial at the Onondaga Special Term dismissing the complaint upon the merits. It was alleged in the complaint in this action that the plaintiff was the duly appointed administratrix with the will annexed of William Gilchrist, Sr., deceased; that the defendant was the duly appointed executrix of the last will and testament of Truman C. Gilchrist, deceased; that the defendant's testator was a member of the firm of T. C. & W. Gilchrist; that that firm was engaged in the grocery business at Oswego, N. Y.; that the partnership continued until the death of the other partner, William Gilchrist, Jr., which occurred November 8, 1888; that the defendant's testator was the sole surviving partner of that firm; that during the continuance of the partnership, and on November 22, 1880, the plaintiff's testator "placed in the hands and deposited with said firm of T. C. & W. Gilchrist the sum of $3,210.00 in trust to be accounted for at the death of the said Betsey Gilchrist, wife of said Wm. Gilchrist, Sr., deceased;" that the plaintiff's testator died in January or February, 1882, leaving a last will and testament, whereby he appointed Betsey Gilchrist executrix thereof and left the income of his estate, real and personal, to her during her natural life; that she died about Hun.] FOURTH DEPARTMENT, FEBRUARY TERM, 1895. April 5, 1890; that no part of said sum had been paid except $250; that a demand for said money was duly made of the defendant, who refused to pay the same, and that a duly verified copy of said claim was served upon, the defendant, who rejected it. The demand for judgment was that the defendant be compelled to account to the plaintiff for the sum of $3,210 and interest, to pay over the same to her, and for such other and further relief as to the court might seem just, with costs. The defendant by her answer admitted the appointment of the parties as administratrix and executrix; that Truman C. Gilchrist was a member of the firm of T. C. & W. Gilchrist; that William Gilchrist, Jr., died as alleged in the complaint; that Truman C. Gilchrist was sole surviving partner of the firm of T. C. & W. Gilchrist; that William Gilchrist, Sr., died at the time alleged; that Betsey Gilchrist was duly appointed as executrix of his last will and testament; that the will of William Gilchrist, Sr., left the income of his estate to Betsey Gilchrist during her life; that she died about April 5, 1890; that a copy of the claim herein was served upon the defendant and that she rejected it. All the other allegations of the complaint were denied. As a second defense, the defendant alleged payment; as a third defense, set up a judgment in a former action or proceeding between the parties as a bar to this action; as a fourth defense, set up a general release by Betsey Gilchrist, as executrix of the will of William Gilchrist, Sr., to Truman C. Gilchrist, and as a fifth defense, set up a general release by Betsey Gilchrist individually to Truman C. Gilchrist. The action was tried at a Special Term of this court held in the county of Onondaga, November 14, 1893. The course pursued on the trial was somewhat unusual, and, hence, it becomes necessary to a proper understanding of the questions involved to state the facts and proceedings had upon the trial somewhat in detail. After the case was opened by the plaintiff a judgment roll, in an action or proceeding in which a judgment in favor of the defendant. against the plaintiff had been entered and which was pleaded as a bar to this action, was offered and admitted in evidence. It was then adınitted by the parties that the plaintiff in this action was the plaintiff in the former action or proceeding, and instituted it in the same capacity in which she commenced this action; that the defendant in FOURTH DEPARTMENT, FEBRUARY TERM, 1895. [Vol. 85. this action was the defendant in the former action or proceeding, and defended that proceeding in the same capacity in which she was sued and was then defending in the action at bar. The parties further admitted that the same money and the proceeds of the same check which were the subject of the first proceeding were also the subject of the present action; that the Betsey Gilchrist mentioned in the judgment roll in the former action or proceeding was the same Betsey Gilchrist mentioned in the complaint in this action, and that the will of William Gilchrist, Sr., mentioned in such judgment roll, was the same will of the same William Gilchrist mentioned in the pleadings in this action. After these admissions were made the plaintiff called William Hancock as a witness, who testified that he knew William Gilchrist, Jr., and Truman C. Gilchrist, who were partners doing business as grocers in Oswego, N. Y.; that they were the sons of William Gilchrist, Sr., and that he also knew William Gilchrist, Sr.; that he was in the employ of the firm as their bookkeeper, and to a certain extent had charge of their financial matters. He was then shown the check of Beulah Hibbard for $3,210, which was the basis of the plaintiff's claim, and testified that he could not identify it, or say that he had ever seen it before. The plaintiff then offered to prove the facts alleged in the complaint herein. The evidence was objected to and the court excluded it. The witness then testified that he received a check; did not recollect whose it was, or the form of it; did not know that he received it for the firm; should judge that he did not, from what occurred afterward; that it was given to him by Truman C. Gilchrist, and that he thought it was for about $3,000; that he deposited the check he received from Truman C. Gilchrist in the First National Bank, but could not identify the check presented as the check received and deposited. The parties then admitted that Beulah Hibbard put a check into a letter and mailed it to Oswego to T. C. & W. Gilchrist, and that she paid the money on the check. The check was payable to bearer, was unindorsed and as follows: "$3,210. FAYETTEVILLE, N. Y., Nov. 22, 1880. "The Farmer's Bank, pay to T. C. & W. Gilchrist, or bearer, thirty-two hundred ten dollars. "BEULAH HIBBARD." Hun.] FOURTH DEPARTMENT, FEBRUARY TERM, 1895. At the left, upon the face of the check, appeared the bank stamp, apparently dated November 24, 1880; at the right, upon the face, appeared the bank stamp, November 22, 1880. The check was canceled by being cut or punctured. About one year before the commencement of this action the plaintiff presented to the defendant a claim against the estate of Truman C. Gilchrist, which was as follows: "HARRIET E. GILCHRIST, executrix of the estate of TRUMAN C. GILCHRIST, deceased, to ELIZABETH WILCOX, administratrix with the will annexed of the estate of WM. GILCHRIST, deceased, Dr. "To cash.... "To int. on $3,000.00 from January 1st, 1880, to January 1st, 1892... $3,000 00 2,160 00 "$5,160 00" This claim was verified by the plaintiff January 12, 1892. The defendant, doubting the justice of the claim, rejected it. Thereupon the parties duly entered into an agreement to refer the claim to S. C. Huntington, Jr., as a referee to hear and determine it. This agreement was approved by the surrogate of Oswego county April 27, 1892, and on the following day an order was duly entered appointing Huntington a referee to hear and determine the matter in controversy between the parties. It was subsequently tried before the referee, and, after hearing the evidence and the counsel for the respective parties, he' duly made and filed his report, whereby he in substance found as matters of fact that the plaintiff's testator on October 16, 1871, duly made and executed his will by which he gave the use of all his property to his wife, Betsey Gilchrist, for life, and after her death to his five children, and appointed his wife and Franklin Hibbard executrix and executor thereof; that he died in or about February, 1882; that his will was duly admitted to probate, and letters testamentary duly issued thereon to Betsey Gilchrist February 13, 1882, who from that day to the day of her death, April 5, 1890, was the sole executrix and representative of the estate of William Gilchrist, Sr., deceased; that Truman C. Gilchrist died August 24, 1891, leaving a last will and testament, which was duly admitted to probate and letters testamentary issued thereon to the defendant herein before |