
    Felix St. Anna Govin et al., Resp’ts, v. Luciana Govin De Miranda, as Executrix, etc., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June, 1894.)
    
    1. Judgment—Concdusiveness.
    The conclusiveness of a judgment cannot be distroyed by showing that a fact existed which, had it been proved, would have produced a wholly different judgment.
    2. Limitations—Trustee.
    Where the testator becomes a trustee for .the beneficiaries, the statute of limitations does not begin to run until he has refused to execute the trust.
    8. Interest—Contract.
    Interest payable by the terms of a contract presumptively belongs to whoever owns the contract when the interest falls due, unless it appears ' that the owner has assigned the interest due or becoming due, or, in case it is payable upon the presentation of coupons, that they have been detached and transferred by the owner.
    
      4. Same—Coupon bonds—Trust.
    Where the title to coupon bonds under declaration of trust has been established by a former action in replevin, interest collected by the creator of the'trust, who has retained possession, and by his executor, is recoverable up to the time of a refusal to deliver the bonds upon a demand of the beneficiary.
    Appeal from a judgment entered on a verdict directed .by the court, and from an order denying a notion for a new trial made on the minutes.
    
      Edward G. James, for app’lt,; A5?-am Kling, for resp’ts.
   Follett, J.

Prior to December 8th, 1883, Felix Govin y Pinto purchased and paid for thirty-eight coupon bonds issued by the Chicago, Burlington & Quincy Railroad Company, for one thousand dollars each, bearing interest at the rate of four per cent, per annum, payable semi-annually, the payment of which was secured by a mortgage upon the Iowa Division of said corporation.

On the 8th of December, 1883, Felix Govin y Pinto executed an instrument, written by himself, of which the following is a copy:

“ In possession of Ramon M. Estevez there are $60,000, in II. 5. bonds, which I declare belong to the- three children, brother and sisters, Emilia, Felix and Guillermina Govin, residents of this city, living at 147 East Thirty-ninth street. Besides, in my box there is a legacy which contains $29,000 fi. R. bonds, Iowa Division; of these ten thousand belong to Luz Diaz y Sanchez, mother of the above mentioned individuals; she has a note for same, signed by me, and the rest belongs to the above mentioned Emilia, Felix and Guillermina in equal parts. No one may go contrary or against this declaration, as it is based under conscience and justice; to me alone is reserved the right to do with this money as I deem proper. Felix Govin y Pinto.

11 New York, December 8ih, 1888.

“ Acknowledged before me this 15th day of December, 1883.- “ James W. Hale,

“Notario Publico, 4 Hanover street.”

This instrument was sealed in an envelope, on which was the following indorsement: “ A declaration in favor of Emilia, Felix, Guillermina Govin and Luz Diaz y Sanchez, who lived in 147 East Thirty-ninth street.”

May 23d, 1891, Felix 'Govin y Pinto died at the city of New York, leaving a last will and testament, which was duly probated November 20th, 1891, and letters testamentary thereon were on that, day issued to the defendant, who accepted the trust and entered on the execution thereof. After the death of the testator the declaration of trust, sealed in an envelope and endorsed as above stated, was found in the safe, and there were also found in the vault of a safe deposit company thirty-eight bonds of the Chicago, Burlington & Quincy Railroad Company of the kind above described.- The testator collected the interest which fell due on these bonds during his lifetime, and subsequent to his death the interest was collected by the defendant.

It is conceded that the testator, in his lifetime, supported the plaintiffs in this action, who, with their mother, Luz Diaz y Sanchez, lived together as a family at No. 147 East Thirty-ninth street, New'York city.

Whether the testator and the plaintiff’s mother were married is a disputed question.

January 13th, 1892, the plaintiffs demanded that the defendant deliver to them nineteen of the Chicago, Burlington & Quincy bonds, which was refused, and March 25th, 1892, these plaintiffs brought against this defendant an action, in replevin, for the recovery of the bonds, in which an issue was joined, and resulted in a judgment for the recovery of the bonds, or, in default of their delivery, for the recovery of tlieir value (17,950), with interest thereon at the rate of six per cent, per annum from January 13th, 1892, to February 27th, 1893, the date of the trial of that action, which judgment was affirmed December 22d, 1893, by the court of appeals, 140 N Y. 474 ; 55 St. Rep. 837. Whether the bonds have been restored or the judgment for tlieir value paid does not appear.

On the 22d of August, 1893, this action was begun to recover the interest on the nineteen bonds collected by the testator in his lifetime and by the defendant as his executor, with interest on the sums so semi-annually collected. On the trial a verdict was directed for §12,034.80, which amount seems to have been agreed upon, or, at least, not contested. How much of this sum was for coupons collected by the testator, or how much for coupons collected by the defendant does not appear, nor does the record disclose the particular semi-annual payments of interest covered by the verdict, or the amount allowed for interest on such semi-annual payments as were included in the sum recovered.

It has been finally determined in the replevin action that the plaintiffs, on the 8th of December, 1893, were and have since remained the owners of nineteen of the bonds of the Chicago, Burlington & Quincy Railroad, which judgment is conclusive of the question of title to the bonds, and cannot be litigated in this action.

The fact that it appeal’s in this case that the testator, prior to December 8, 1893, pxxrchased and paid for the bonds in dispute, which fact was not shown on the former trial, does not axithorize this court to reconsider the question of ownership. If this fact is a conti’olling one upon the rights of the' litigants, the defendant should have proved it on the trial of the former action, or, if unknown at that date, she should have moved for a ney trial on the ground of newly discovered evidence. The conclusiveness of the first judgment cannot be destroyed by showing that a fact existed which, had it been proved, would have produced a wholly different judgment. The Williamsburgh Savings Bank v. The Town of Solon, 136 N. Y. 465; 49 St. Rep. 840. This rule is so elementaxy that it does not need to be supported by the citation of cases.. To hold the contrary would destroy the effect of judgments and permit questions once settled to be relitigated upon the discovery of some new fact.

It being conceded that the defendant and her testator collected the interest on plaintiffs’ bonds, it is difficult to see on what theory the defendant can escape a judgment for the recovexy of the amount so collected without establishing an affirmative defense.

The interest payable by the terms of a contract is but an incident thereof, and presumptively belongs to whoever owns the contract when the interest falls due. This is a rebuttable presumption, which may be overthrown by showing that the owner had assigned the interest due, or becoming due, and in case it is payable upon the presentation of coupons, that they have been detached and transferred by the ownei’. There is no evidence in this case indicative of an intention on the part of the, plaintiffs to relinquish the interest, and the only fact to which we are referred tending to show that the interest belonged not to the plaintiffs but to the testator, is the last clause of the instrument of December 8th, 1893: “ Ho one may go contrary or against this declaration, as it is based under conscience and justice; to me alone is reserved the right to do with this money as I deem proper.” This language was not intended to limit, but to make certain the rights of the beneficiaries, and it is an assertion by the declarant that he had the right to do as he chose with the bónds, and that third persons had no right to question the disposition which he made of tnem. The declarant, by this clause, did not reserve, or intend to reserve, to himself the right to dispose of the accruing interest on the bonds, which he declared belonged to the beneficiaries.

The Statute of Limitations is not a bar, for several reasons : First, the testator became a trustee for the beneficiaries, and the statute did not begin to run until he had refused to execute the trust. Further than this we are unable to determine, from the record in this case, for how long a period the' plaintiffs were permitted to recover the semi-annual interest, nor how much was recovered on account of the collections made by the defendant, and how mxxch on account of the collections made by the testator. Had the defendant intended to raise the question that recovery for some part of the interest collected was barred by the statxxte, she would have shown how much was collected anterior to the six or ten years preceding the date of the commencement of the action.

It is urged that the judgment in the replevin action is a bar to this, on the theory that the first judgment is the measure of the defendant’s liability to the plaintiffs for the conversion of the bonds. So it is. But the defendant’s testator never refused to deliver these bonds to the plaintiffs, but held the securities as an agent, and the defendant did not convert the bonds until she refused to deliver them upon the demand of the plaintiffs, who, in the first action, could recover only the bonds and the damages for their unlawful detention, which damages began to accrue from the date of such detention. The collections of the interest by the testator, and by the defendant before her refusal to deliver, were not wrongful but legal acts, and their liability to account as agents for the collections formed no part of the claim for damages for the wrongful detention of the bonds.

The judgment should be affirmed, with costs.

Van Brunt, P. J., and Parker, J., concur.  