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as such retention is consistent with the character he sustains, and therefore does not excite any suspicion of an intention to appropriate the funds. Although the statute of limitations does not apply directly to technical trusts, yet it has always been held that if a trustee should deny the right of the cestui que trust, and assume absolute ownership of the trust property, he thereby abandons his fiduciary character, and the cestui que trust must commence legal proceedings against him within the statutory period of limitations. It should appear that the cestui que trust had knowledge of the trustee's denial, repudiation, or adverse claim, and that the trustee has not been guilty of fraud. The doctrine that a positive and technical trust is not barred by the lapse of time is subject to two qualifications, namely, that no circumstances exist to raise the presumption from lapse of time of an extinguishment of the trust, and that no open denial or repudiation of the trust is brought home to the knowledge of the parties in interest, which requires them to act as upon as asserted adverse title. Busw. Lim. & Adv. Poss. 471. Lapse of time, without any claim or admission of an existing right, coupled with circumstances tending to show that a trust had been executed, may raise a presumption of its execution, and, in case of a guardian, may authorize the court to require a less specific statement of items, and raise a presumption of payment to, and for the ward to the amount of the account. Gregg v. Gregg, 15 N. H. 190; Whedbee v. Whedbee, 5 Jones, Eq. 392. In Re Neilley, 95 N. Y. 382, it was held that it is only where there is an actual, continuing, and subsisting trust that a trustee is precluded from setting up the statute of limitations. . This was held upon the authority of Kane v. Bloodgood, 7 Johns. Ch. 89. The opinion of the court in this case, at page 90, refers to the equitable rule under which courts of equity reject stale claims, independent of the statute of limitations, and cites one case where a bill was filed against an executor for an account, and there being no statutory protection, and the presumption of a final settlement being rebutted, the court refused to open the account after a great lapse of time, when it was probable that most of the parties were dead, and the vouchers and the receipts were lost. In the case at bar, 10 years had elapsed after a practical, informal settlement out of court, and many of the items for which reimbursement was claimed were rejected because of the absence of vouthers or substituted proof required by section 2734, Code Civil Proc. In Re Hawley, 104 N. Y. 261, 10 N. E. Rep. 352, it was held that, to constitute a testamentary trustee, it is necessary that some express trust be created by the will. Merely calling an executor or guardian a trustee does not make him such. Every executor and every guardian is, in a general sense, a trustee, for he deals with the property of others, confided to his care. But he is not a trustee in the sense in which that term is used in courts of equity and in the statutes. In re Camp, 126 N. Y. 377, 27 N. E. Rep. 799, was a proceeding against the father and guardian of petitioner to compel him to account. The
mother of the ward died seised of certain real estate, leaving her husband and four children, heirs at law. Prior to her death the city had commenced proceedings to acquire title to a portion of the real estate, which after her death resulted in an award of $26,000 to the petitioner, and his brother and sisters. This sum was paid to the father, as such guardian. The accounting proceeding was commenced in May, 1888. The moneys were received in February, 1868. The fact of the receipt of the moneys first became known to the petitioner within a year of the institution of the proceedings. The respondent answered that the guardianship of the petitioner ceased in 1872, when he became of age, and that the present proceedings were on that account barred by the statute of limitations. The surrogate overruled the objection, and directed the guardian to file an account. After an unsuccessful appeal to the general term, the guardian filed his account, which was of a most general character, and from which, and from his statements accompanying the same, it appeared that he had made certain payments which he claimed to charge the petitioner with, and which, if allowed, would show that he had more than paid out for the benefit of the ward the moneys that he had received. Objections were filed to the account, and it was sent to a referee. Before the referee the guardian insisted that the fund was not such a fund as he should account for as general guardian, nor could any portion of it be enforced to be distributed among the heirs at that time, or at any time prior to his decease. This objection was also overruled, and the guardian excepted. The referee found the guardian liable to account for the amount he had received, but that he was to be credited with the value of his life interest therein. He deducted the proportionate share of such life interest from the share of the petitioner, and gave judgment for the balance, with interest. The general term modified this so as to charge the guardian with the full sum received by him, with interest from the time he received it. At the foot of page 388, 126 N. Y., and page 803, 27 N. E. Rep., of the opinion, the court refer to their previous decision in Re Hawley, 104 N. Y. 261, 10 N. E. Rep. 352, and distinguish it. But at page 389, 126 N. Y., and page 803, 27 N. E. Rep., they state that they do not regard the matter as very important upon this question. While I am not by any means satisfied that the decision of the court of appeals in Re Camp, 126 N. Y. 377, 27 N. E. Rep. 799, is decisive upon the point that the relation existing between a guardian and a ward after majority is such a technical trust as to subject it to the rule that the statute of limitations does not apply, the matter may be decided upon another point, as to which the law is entirely clear. At page 12 of the minutes, the mother testified:
“Ever since Cora knew anything, she saw my account book. It always lay on the table or on my desk, and it was never locked. If she did not inspect those accounts, it was because she did not want to. I supposed she did. Question. Did she look over the accounts? Answer. In a general way, certainly she did, for she could not help it. I have read them over to her. and told her about it."
These transactions occurred at or before she attained her majority.
"Q. Do you say the same of your account as guardian,—the history of your administration up to the time when she became of age? A. Yes, sir."
At page 78 the ward testified: "My mother always treated me very kindly, but I thought it strange that I never had anything, or any money. After I was of age, I asked my mother about it. I never asked before. Q. What did she tell you when you became of age? Did she show you the account? A. No; she only said she spent all upon living."
It appears by this testimony that subsequent to the attainment of her majority, the guardian and ward had a conversation concerning the accounts of her mother, and the mother stated that she had expended the entire fund. All the other circumstances surrounding the case negative the idea that the trustee was guilty of any fraud or concealment which would prevent the repudiation from having its legitimate effect. The accounts were always open to her inspection, and, notwithstanding her statement that she did not examine the same, it is apparent from other portions of the testimony that she knew their contents, and was aware that in some instances her mother had charged against her sums as low as 5 or 10 cents. She could not have known this without, to some extent, having examined the account. I am therefore of opinion that the referee's report must be overruled, and the proceedings dismissed, upon the ground that the statute of limitations runs against the claim.
PEOPLE v. STOKES et al.
(Court of General Sessions, New York County. May 17, 1893.) 1. CRIMINAL LIBEL-COMPETENCY OF COMPLAINANT—CONVICT.
Under Pen. Code, $ 714, which makes a person convicted of a felony a competent witness in any cause or proceeding, civil or criminal, such a
person is not incompetent as con plainant in a criminal libel suit. 2. SAME-INDICTMENT-DEMURRER-PRIVILEGED COMMUNICATION.
Pen. Code, $ 253, provides that a communication made to a person entitled to or interested in it, by one who was also interested in or entitled to make it, or who stood in such a relation to the former as to afford il reasonable ground for supposing his motives innocent, is presumed not to be malicious, and is called a "privileged communication.” Held, that such presuniption is not conclusive, but mily be overcome by proof, anıt therefore it cannot be determined on demurrer to an indictment whether
or not the libel set out therein was published in good faith. 8. SAME-SUFFICIENCY OF INDICTMENT.
Under Code Crim. Proc. $ 289, providing that an indictment for libel need not set forth any extrinsic facts for the purpose of showing the application to the party libeled of the defamatory matter, but may state generally that it was published concerning him, an indictment need not show by explanatory matter the application to complainant of a vague and uncertain defamatory letter set out therein, and on which the libel is predicated.
William E. D. Stokes and William R. Martin were indicted for libel. Defendant Stokes demurred to the indictment, and defendant Martin moved to dismiss. Demurrer overruled, and motion denied.
De Lancey Nicoll, Dist. Atty., and John D. Lindsay, for the People.
Holmes & Adams, (George H. Adams, of counsel,) for defendants.
COWING, J. By an indictment filed in this court on the 25th day of April, 1893, the defendants are charged with committing a criminal libel. On the Sth of May, the defendant Stokes filed a demurrer to the indictment, which, if sustained, the defendant Martin claims must inure equally to his benefit. The demurrer sets forth two distinct grounds of objection to the indictment: First, that the facts therein stated do not constitute a crime; second, that upon the face of the indictment the alleged libelous matter appears to be privileged, and therefore not criminal. Upon the argument of the demurrer, the counsel for the defendant Martin, by way of motion, moved to dismiss the indictment, upon the ground that the complainant, having been convicted and sent to state's prison for a felony, is disqualified to testify as a witness, and is also thereby rendered incompetent to be a complainant in a criminal libel suit. Without passing upon the regularity of defendant Martin's motion, I am of the opinion that his objections to the indictment are not tenable. Section 714 of the l'enal Code expressly provides that a person convicted of a felony is no longer, as at coinmon law, rendered incompetent to testify as a witness, but this section expressly makes him a competent witness in any cause or proceeding, civil or criminal, leaving his conviction to be proven against him to affect his credibility only. This express provision of law makes it unnecessary for me to refer to the effect a pardon has in restoring a convicted felon to competency as a witness. A criminal libel is prosecuted in the name of the people, not for the purpose of re dressing an injury done to an individual, but is so prosecuted and punished as a crime, for the reason that it tends to provoke ani. mosi and violence, and to disturb the public peace and repose, and certainly it will not be for a moment contended that the threat. ened danger to the public peace is not as great when the person libeled is a bad man as when he is a good man. In a civil action, brought by an individual to obtain satisfaction for an injury to his reputation, caused by the publication of a libel, the bad reputation of the complainant becomes material as affecting the measure of alamages, while in a criminal action brought in the name of the people the individual libeled, so far as personal redress and satisfaction are concerned, is not considered. By the demurrer the defendant Stokes claims that it appears upon the face of the indict. ment that the alleged libel is privileged, and therefore not criminal. This contention of the defendant is predicated upon section 253 of the Penal Code, which reads as follows:
"A communication made to a person entitled to or interested in the communication by one who was also interested in or entitled to make it, or who
stood in such a relation to the former as to afford a reasonable ground for supposing his motives innocent, is presumed not to be malicious, and is called a privileged communication."
Undoubtedly a written defamatory statement published against a person in good faith and without malice, under the circumstances stated in section 253 of the l'enal Code, does not constitute a criminal libel; and if the grand jury should find an indictment upon such a statement, charging its publication to be a criminal libel, the defendant would be entitled to an acquittal by the trial jury, but the court cannot, as matter of law, and without evidence, find that such statement is true, and was published in good faith and without malice. To be sure, said section provides that a written statement, published under the circumstances therein defined, is presumed to be published without malice, yet this is not a conclusive presumption, any more than the legal presumption that a person is innocent or sane and accountable for his act. It merely stands as a fact proven, in the absence of any evidence to the contrary. Therefore, whether the statement referred to in the indictment is privileged or not under said section 253 can only be determined upon the trial upon the merits, where evidence pro and con can be adduced. The law does not permit one in bad faith, even under the circumstances mentioned in said section, to publish an untrue statement, to another's injury, and the people have an undoubted right to show, if they can, by evidence, that the statement is untrue, or that it was published in bad faith and with malice, which cannot be done upon the trial of a demurrer, but only upon the trial upon the merits before a jury.
The contention of the defendants that the alleged defamatory letter is vague and uncertain, and that the indictment is defective for the reason that it does not set forth any explanatory matter showing its application to the complainant, is fully answered by section 289 of the Code of Criminal Procedure, which provides that "an indictment for libel need not set forth any extrinsic facts for the purpose of showing the application to the party libeled of the defamatory matter on which the indictment is founded; but it is sufficient to state generally that the same was published concerning. him, and the fact that it was so published must be established on the trial.” This indictment avers that the alleged defamatory letter was published concerning the complainant; and if it does not clearly so appear by the letter itself, under this section of the Code it becomes matter of evidence, and not of pleading, to make it so appear.
The further contention of the defendants is that the indictment is fatally defective, for the reason that the averment of publication only shows that it was made by sending it to the complainant himself, and that, under the circumstances of this case, this is no publication at all. It will appear on inspection of the indictment that there is an allegation that the letter in question was sent to a third party, to wit, George W. Cornish, and, if the jury should find