the special property of the pledgee ceased, and as the title of the pledgeor cannot be divested except by a sale on notice or by legal proceedings, his title to the property remains unaffected by the lapse of time until the pledgee takes the necessary proceedings to divest it. As an incident to this right of redemption, the pledgeor has the right, where the amount due on the obligation to secure which the pledge was given is uncertain, to come into a court of equity and ask to have the amount ascertained, and on payment of such amount to recover the possession of the pledge, (Kemp v. Westbrook, 1 Ves. Sr. 278,) and that is the right plaintiff seeks to enforce in this action.

The

The defendant pleads the statute of limitations, and whether or not that action is barred by the statute is the main question to be determined. defendant relies-First, upon the provisions of the bankrupt law, which provide for actions by and against assignees in bankruptcy. That provision is as follows: "No suit, either at law or in equity, shall be maintained in any court between an assignee in bankruptcy and a person claiming an adverse interest touching any property or rights of property transferable to or vested in such an assignee, unless brought within two years from the time when the cause of action accrued for or against such an assignee. Rev. St. U.S. § 5057. The time in which an assignee in bankruptcy can bring an action is here limited to two years from the time when the cause of action accrued for or against the assignee, and if this cause of action accrued more than two years before the action was brought, the defendant is entitled to judgment. That Drew had a cause of action to redeem the day the bonds were delivered, cannot be disputed; but is the cause of action then accrued the cause of action which is here sought to be enforced? That question is answered by the case of Miner v. Beekman, 50 N. Y. 343. That was an action brought by the mortgagee to redeem from a mortgage. The mortgage was made much more than 10 years prior to the commencement of the action, and the defendant pleaded the 10-years statute of limitations, and had judgment below. The court of appeals, in reversing the judgment, said: "The argument upon that point for the defendant is that the mortgagor, upon the moneys becoming due, had the right to come into a court of equity and have the amount of the lien determined and discharged of record upon payment. So far his position is correct. But is the deduction therefrom equally sound; that is, that this right is barred by the statute after the lapse of ten years? * * * It is an acknowledged branch of equity jurisdiction to remove clouds from the title at the suit of the owner of the fee. Such owner has a right to invoke this aid. But must he do so within ten years after the commencement of the cloud, or may he do it at any time during its existence while he continues such owner? My conclusion is that this is a continuing right, that it may be acted on at any time during the existence of the cloud,-never barred by the statute of limitations while the cloud continues to exist. This results from the continuing character of the right, which is equally as potent after the lapse of eleven years as it was during the first ten." Applying this principle to the question here, it is clear that the right to invoke the aid of a court of equity to ascertain the amount due upon an obligation secured by a pledge of personal property is a continuing right, and continues as long as the right to redeem exists. The same principle was applied in an action for the conversion of a pledge in Roberts v. Berdell, 15 Abb. Pr. (N. S.) 183. There the loan for the payment of which certain bonds were pledged had been paid more than six years before the commencement of the action, but the demand for the return of the bonds and the refusal of the pledgee to comply was within the six years. It was held by the court of appeals that the cause of action accrued on the conversion of the bonds, and there was no conversion until the time of the refusal; that a mere omission of the defendant (the pledgee) to return the bonds after the payment of the debt was not a conversion. The pledgeor, being the owner of the bonds, has therefore the right to redeem by the payment of

the amount due upon the obligation to secure which the bonds were pledged; and where the amount due is uncertain, he has a right to apply to the court to have that amount ascertained. That cause of action does not depend upon the right of the parties as they existed at the time of the pledge, but depends upon the right of the pledgeor to redeem at the time the bill was filed, and the cause of action upon which such bill is founded accrues not when the collateral security was first pledged, but when the right to redeem was first insisted upon, viz., upon the filing of the bill; and the plaintiff having succeeded to Drew's title to the bonds by the bankruptcy proceedings, and that title never having been divested, such right to redeem existed at the time of the filing of the bill.

I have examined the cases cited by the defendant in the supreme court of the United States, but none of them determine the question here presented. In all the cases in which the defense of the statute has been sustained, the right to commence the proceedings accrued more than two years before such proceedings were commenced, and in Bailey v. Glover, 21 Wall. 346, and the cases that have followed that decision, it was held that where fraud was charged, the cause of action did not accrue until the discovery of the fraud. Thus recognizing the distinction between the vesting of the right of action in the assignee and the accruing of the cause of action in his favor, and that although the action was not brought within two years after the appointment of the assignee, that did not bar the action, unless more than two years had elapsed after the cause of action accrued.

The defendant also relies upon the statute of limitations in this state, (sections 382, 388, Code;) but the plaintiff has under those sections 10 years in which to bring his action after the cause of action accrued, and it appears from what has been said that such cause of action accrued on filing the bill. The case of Roberts v. Sykes, 30 Barb. 173, must be considered as overruled by Miner v. Beekman, supra. Nor does the refusal of Chamberlain to recognize Drew's right to the bonds, or any portion of them, help the defendants. The application to Chamberlain was made by Boyd, but so far as appears without Drew's knowledge or procurement. Whatever interest he had in them passed to the plaintiff, and the transaction between Boyd and Chamberlain was not known to either Drew or the plaintiff. I have come to the conclusion, therefore, that the statute of limitations is no bar to this action, and that plaintiff is entitled to a decree for an accounting to ascertain the amount from Chamberlain to Drew. I think, however, on the evidence in this case that the defendant Chamberlain is entitled to hold these bonds as security for the Albany and Susquehanna bonds delivered by him to Drew, and sold by Drew, and also for the amount of $30,000 paid by Chamberlain to Drew's son at Drew's request. Boyd testified that at the interview at which Drew deliv-' ered the bonds to him on account of Chamberlain that Boyd insisted that he (Drew) should protect Chamberlain; that Boyd wanted it fixed so that there could be no question about the protection of Mr. Chamberlain, and his wife and children, and that for that purpose Drew consented that the bonds should be set aside for Chamberlain. It is clear that this gave to Chamberlain the right to hold the bonds until all obligations due from Drew to him had been paid, and the evidence in this case establishes that Drew was at the time indebted to Chamberlain, in addition to the note, the amount of $30,000, which Chamberlain paid to William H. Drew, at Daniel Drew's request, and on his agreement to make it right. The evidence also establishes that the eighty Albany and Susquehanna bonds were sold by Chamberlain to Drew, and by him sold and applied to his own purposes, and that that amount had never been repaid to Chamberlain. The decree should therefore provide that it be referred to a referee to ascertain and report how much is due to Chamberlain upon the note for $118,000, and the $30,000 paid by Chamberlain to Drew, and the proceeds of the Albany and Susquehanna bonds sold by Chamberlain

to Drew, and that upon the payment of the balance due that Chamberlain, or his assignees, transfer the bonds remaining unsold to plaintiff. Findings and judgment to be settled on notice.

MOOREHOUSE v. HUTCHINSON.

(Supreme Court, Special Term, New York County. July 14, 1888.)

1. TRUSTS-VALIDITY-CONSTRUCTION OF WILL.

Testator devised real estate to his wife for life, remainder to be equally divided between his children, and directed her to execute a conveyance of the shares of his two daughters to a trustee named, to take effect after her death, for their separate use, which was done accordingly. Held, that the trust was passive, and therefore void, and that the statute of uses vested in such daughters the legal title to their shares.

2. SAME RIGHT OF BENEFICIARIES TO QUESTION VALIDITY-Order of General Term. A decree of the general term revoking the letters testamentary which had been issued to such wife, and removing her as trustee, does not preclude the daughters from questioning the validity of such trust, the will having contained other trusts. Oliver J. Wells, for plaintiff. Henry C. Butler, for defendant.

LAWRENCE, J. I do not regard the decision of the general term, upon the appeal taken by Mary Ann Hutchinson, the executrix, from the decree of the surrogate revoking the letters testamentary issued to her, and removing her as trustee, as precluding the plaintiff in this action from questioning the validity of the trust contained in the seventh clause of the will of Hiram Hutchinson, deceased. There are several trusts contained in that will, either one of which would be sufficient to support the reasoning upon which the determination of the general term proceeded. That decision must be regarded as establishing that Mrs. Hutchinson, under said will, became a trustee, and that therefore, in a proper case, it was within the power of the surrogate to remove her, and also as establishing that such case had been made out before the surrogate. No expression of opinion is given as to the force or effect of the different trusts, nor as to their character, whether active or passive. The second and seventh paragraphs of the will are as follows: Second. I bequeath and devise all of my property, real and personal, to my wife, Mary Ann Hutchinson, for the term "of her natural life, and after her death to be equally divided between my children, viz., Alcander Hutchinson, Sarah Elizabeth Southgate, wife of the Rt. Rev. Bishop Southgate, Mary Frances Moorehouse, Hiram Hutchinson, Jr., and Charles Louis Richard Hutchinson, in such proportion as, taking into account the sums already paid or advanced to them, or hereafter advanced to them under the provisions of this will, shall give them equal shares. Nevertheless, and always provided, that the bequest and devise of the said property, for the term of her natural life, to the said Mary Ann Hutchinson, is intended to be and shall operate as a trust, for the uses and purposes hereinafter declared, and that the trusts hereinafter created shall be a charge both upon the incomes of the property and on the body of the estate herein conveyed, both real and personal, and of every kind and description." Seventh. "In trust that the said Mary Ann Hutchinson shall, by proper form of conveyance executed to take effect on her death, convey the interest of my two daughters devised to them under this will, to Alcander Hutchinson, in trust, for their sole and separate use. Also conveying and setting aside in like manner, for their separate use, any sums of money devised to them from my estate by payments, gifts, or appropriations, made to or for them by the said Mary Ann Hutchinson after my death, from the incomes accruing to her from her life-estate." It is quite apparent from the provisions contained in the second paragraph above referred to, and also from the provisions of the eighth paragraph of the will, that it was the intention of the testator that upon the death of Mrs. Hutchinson the testator's estate

should be distributed equally, and that his children should be made "equal each one to the other." Mrs. Hutchinson died on the 10th of March, 1887, having long prior thereto, pursuant to the directions of the seventh clause of the will, executed a deed to Alcander Hutchinson of the share or interest "derived or devised" under the will to the plaintiff in this action. The plaintiff now claims that the trust contained in the seventh paragraph of the will is passive, and therefore void; that she is entitled to a judgment against the said defendant to that effect; and that he account for, deliver, and convey all the property held by him as such alleged trustee, together with the accumulations thereof. It was long ago settled that a feme covert, with respect to her separate estate, is to be regarded in a court of equity as a feme sole, and that she might dispose of her property without the consent or concurrence of her trustee, unless specially restrained by the instrument under which she acquired her separate estate. Jaques v. Methodist Church, 17 Johns. 548. See, also, Jervoise v. Duke of Northumberland, 1 Jac. & W. 559, 575; 2 Story, Eq. Jur. § 979. It was also held that where the absolute beneficial interest in the trust was given to the separate use of a married woman, without any restriction or direction as to the mode of possession or enjoyment, or in such manner that the statute of uses would execute the use or title in her, if it was real estate, she would be entitled to call upon the trustees for an immediate conveyance or transfer of the legal title to her. See 2 Perry, Trusts, (3d Ed.) § 667, p. 273, and cases cited, See, also, Tiff. & B. Trusts, 686. In Rawson v. Lampman, 5 N. Y. 456, it was held that where a conveyance of land is made to one person in trust for the use and benefit of another, his or her heirs and assigns, without limitation, no estate or interest vests in the trustees, but the entire estate, legal and equitable, vests in the person to whose use the conveyance is made, subject, however, to such conditions as would have attached to the legal estate had the title vested in the trustee according to the terms of the deed. The court cited the forty-sixth and forty-seventh sections of the Revised Statutes, “Of Uses and Trusts." That case was approved in Fisher v. Hall, 41 N. Y. 424, and so far as I have been able to discover it has never been questioned as a correct exposition of the law. See, also, Woodgate v. Fleet, 64 N. Y. 566; Verdin v. Slocum, 71 N. Y. 345. In that case the will provided as follows: "I direct my said trustees to permit and suffer my son, William B. Slocum, to have, receive, and take the rents, issues, and profits for the term of his natural life, and after his decease I give, devise, and bequeath the same part or share to the heirs at law of my said son. It was held that the trust so attempted to be created was a passive one, and was invalid, and that the son took a life-estate, upon which a judgment against him was a lien. See, also, Bank v. Holden, 105 N. Y. 415, 11 N. E. Rep. 950; Helck v. Reinheimer, 105 N. Y. 470, 12 N. E. Rep. 37. Under the seventh paragraph of the will, the grantee, Alcander Hutchinson, has no power to do anything. He is not to receive the rents, issues, or profits of the share intended for Mrs. Moorehouse, nor of that of her sister. He is not to apply them to their use or maintenance. I cannot but conclude, therefore, that the alleged trust created in the seventh clause of the will is a mere passive trust, and therefore void. The cases cited by the learned counsel for the defendant do not contain anything adverse to the views expressed in the cases heretofore referred to. In Ward v. Ward, 105 N. Y. 68, 11 N. E. Rep. 373, duties were imposed upon the executors as trustees, which made the trust active and not passive. In Donovan v. Vandemark, 78 N. Y. 244, it was held that it was not necessary, under the statute, in order to create a valid trust, that the trust should be stated in the very words of the statute. In that case all the testator's real and personal estate was given in trust for the necessary support and maintenance of the testator's son during his natural life, and after the son's death the estate was devised and bequeathed to the children of the son. The executor was also authorized to sell certain of the real estate. The court there

"

held that the will gave to the trustee, directly or inferentially, power to manage the estate and receive the rents and profits, and apply them, according to his judgment, in the support and maintenance of the son, and that therefore a valid trust was created, and a legal title vested in the trustee. No such feature exists in this case. Alcander Hutchinson is not required or authorized to receive the rents and profits of the property conveyed to him, nor is he to apply them or hold them for the support or maintenance of the plaintiff, or to any one for her benefit. See case last cited, at page 247. Morse v. Morse, 85 N. Y. 53, was a case directly within the provisions of the statute, the trustees being directed to annually pay the interest of one-sixth of the residuary estate to the son of the testator, in whose behalf the trust was created. The same remark applies to the case of Moore v. Hegeman, 72 N. Y. 376, where the will directed that a specific sum out of the rents, issues, and profits of each share of the estate, during the minority of the child for whose benefit it was held, "shall be applied to his or her education, support, etc.," the court holding that the words "applied" and "paid over," as used, were substantial equivalents, and that the trust was within the provision of the statutes of uses and trusts, relating to express trusts. 1 Rev. St. 730; Moore v. Hegeman, 72 N Y. 376. In the view above taken it is entirely immaterial whether the testator intended to use the word "derived," in the seventh paragraph of the will, or whether, as the plaintiff contends, that word was by a clerical error used instead of "devised." Either word is sufficiently descriptive of the interest of bis daughters in his estate, which the testator directed his wife to convey to his son Alcander for the sole and separate use of each of the daughters. On the authorities above cited, I am of the opinion that the plaintiff in this case is entitled to the relief for which she prays, and judgment will be rendered accordingly. Findings will be settled on two days' notice.