Opinion
Argued June 5, 1890
Decided October 7, 1890
F.K. Pendleton for appellant. Elihu Root for railroad company, respondent. Frederick A. Ward for National Bank of Commerce, respondent.
The complaint in this action was dismissed on the sole ground that the plaintiff did not have legal capacity to sue in this state; and, therefore, it is proper for us to consider only the question whether it did have such capacity.
The codicil to the will of the testator created a valid trust, and, although there were no words of gift to the trustee, he took the legal title to the trust estate. Such a title is necessary for the purposes of the trust, and hence it must be presumed that the testator meant to give it. ( Oates v. Cooke, 3 Burr, 1685; Doe v. Homfray, 6 Ad. El. 206; Doe v. Woodhouse, 4 T.R. 89; Leggett v. Perkins, 2 N.Y. 297; Tobias v. Ketchum, 32 id. 319; Killam v. Allen, 52 Barb. 605.)
Muirheid, the trustee, could have maintained an action in the courts of this state to recover any of the trust property by anyone wrongfully detained here or for the wrongful conversion of such property, or for damages thereto. Such an action would not have been in a representative capacity, but in his own right as the legal owner of the property. It might have been necessary for him, upon the trial of such an action, to prove the will and put it in evidence for the purpose of showing his title; but it would not have been necessary for him to have the will admitted to probate in this state. (Williams on Exrs. [2d Am. ed.] 226, note; Id. [7th London ed.] 362, note; Judson v. Gibbons, 5 Wend. 224; Middlebrook v. M. Bank, 3 Keyes, 135; Smith v. Webb, 1 Barb. 230.) So much is true as to the trust property generally. But here there is more. The executrix of the will assigned this stock to the trustee, and the defendants issued to him as trustee a new certificate therefor, and thus he became the legal owner thereof, and could, as such, have maintained an action here in reference to the same without probate of the will here, as a legatee under a foreign will of specific chattels can, after assent to the legacy by the executor, maintain an action here to recover such chattels being in this state, without probate of the will here. So, if Muirheid had legal capacity to sue here, any one to whom he lawfully transferred his title had the same capacity.
It, therefore, remains only to be inquired whether the plaintiff has succeeded to Muirheid's title in such way that it has legal capacity to commence this action. It is not disputed that under the law of its being, it had the capacity to become trustee of this trust.
It was the plain purpose of the Canadian action to procure the appointment of a new trustee in the place of Muirheid, and that was a portion of the relief demanded. The action was brought in a court of general jurisdiction and the court had jurisdiction of the subject-matter, and acquired jurisdiction of all the necessary parties. It had all the parties in open court, and upon proof and admissions rendered judgment which was properly entered. The judgment as entered was final, not interlocutory or provisional. It was somewhat informal and imperfect in its phraseology. But reading the complaint and considering the purpose of the action, and the relief demanded, there can be no doubt that it was the intention of the court to appoint the plaintiff trustee in the place of Muirheid. But whatever doubt there is as to the effect of the judgment as originally entered is removed by the order subsequently made amending the judgment nunc pro tunc so as to make it conform to the judgment as originally pronounced. Between the entry of the original judgment and the amendment thereof, no new rights had intervened, and hence the court had the power to amend the original judgment so as to cause it as amended to have effect as of the date of its original entry. Such amendment was in furtherance of justice and worked no injustice to anyone. That the amendment under such circumstances was properly made cannot be successfully questioned. ( Wright v. Nicholson, decided in the U.S. Supreme Court, March 3, 1890.)
There can be no doubt, therefore, that the plaintiff was legally appointed trustee in Canada. While there was no formal transfer of the title of the trust estate to it, it was put in the place of Muirheid and took the same title he had, and it thus took the legal title as trustee to whatever there was of the trust estate.
Having thus been clothed with the title to the trust estate in Canada by proceedings in the Canadian action, can it, standing upon that title, maintain an action here as trustee? We think this question was erroneously answered in the negative in the court below.
It is the general rule that he who is the legal owner of property may maintain an action wherever it may be for its recovery, or for damages for its conversion. Generally, his capacity to sue in such cases grows out of his legal ownership. It is believed that there is no exception to the rule where the legal owner sues in his own right and not in a representative capacity. In such cases all owners stand upon the same footing. But the rule is somewhat modified when one sues in a representative capacity. Foreign executors and administrators cannot sue here for reasons of public policy. The courts will not lend their aid to them in the removal of the assets from this state to the possible prejudice of domestic creditors. ( Petersen v. C. Bank, 32 N.Y. 21.) Yet such personal representatives may make transfers of property which will be recognized as legal here. They may execute valid releases of debts due here, and they may come here and remove property from the state whenever they can do so without being obliged to ask the aid of our courts; and foreign receivers and assignees taking their title to property by virtue of foreign laws or legal proceedings in foreign courts may come here and maintain suits in our courts when they do not come in conflict with the rights or interests of domestic creditors; and why may not this trustee? Its position is not like that of an executor or administrator, who is simply a representative of a dead person, gathering in and administering upon property for the benefit of others. But it is more like that of the legal owner of property who pursues it or brings suit about it for his own benefit. Its position is at least as favorable as that of foreign assignees of bankrupt and insolvent debtors, or of receivers of insolvent foreign corporations, who may come here and, by the comity of nations, maintain actions here when they do nothing to the prejudice of domestic creditors. ( In re Waite, 99 N.Y. 433.) Here there are no creditors who have any claims upon or interest in the property involved in this action.
We purposely abstain from examining the merits of this action, as they are not properly before us. We simply decide that the plaintiff has capacity to bring this action, and hence the judgment should be reversed and a new trial granted, costs to abide event.
All concur.
Judgment reversed.