
    The People ex rel. William A. Brodie v. Alfred A. Cox et al., as Assessors, etc.
    
      (Supreme Court, Special Term, Monroe County,
    
    
      Filed March, 1888.)
    
    1. Taxation—Who a trustee within 1 Revised Statutes, 389, § 5.
    The term “trustee,” as used in 1 Revised Statutes, 389, § 5, which requires the town assessors to assess every person “in the town or ward where he resides when the assessment is made, for all personal estate owned by him, including all personal estate in his possession or under his control as agent, trustee, guardian, executor or administrator,” etc., is limited in its application to a person expressly authorized by statute to hold the legal title to property in trust for some specific purpose.
    3. Same — Money paid into court and held by county treasurer as depositary NOT SUBJECT TO TAXATION BY TOWN.
    By the terms of a certain will, the control and management of the estate were committed to a non-resident as executor and trustee. Said trustee, at his own request, was discharged from further performance of the duties of trustee. Tne trust fund was paid into court and the relator, as treasurer of the county, became the depositary thereof under Code Civ. Pro., § <5537. As a depositary of the fund the relator was charged with the duty of safely keeping and investing the same. Held, that he did not exercise the function of a trustee. That the court could not be deemed to have a residence in any particular town or ward which would authorize the assessors of such town or ward to assess it for the funds which are under its control.
    S. What exempt as foreign capital brought into state for investment.
    This trustee had performed the duties of the trust for some time, and as such trustee invested the trust funds in the state of which he was a resident. Qumre, whether this fund might escape taxation upon the theory that it is foreign capital brought into this state for investment.
    Certiorari to review assessment.
    
      J. B. Adams, for relator; John R. Strang for assessors.
    Adams, J.—By
    the undisputed facts in this case it appears that in March, 1875, one Ann Lyman died at the town of Leicester, Livingston county, leaving a last will and testament, by the terms of which she devised and bequeathed to her daughter, Harriet Lyman, who resides at Chicago, in the state of Illinois, for her sole and separate use during the term of her natural life, or until her marriage, all of her estate, both real and personal, and directed the executor named in the will to take charge of all the property intended to be devised and bequeathed thereby; to convert the same into money and to invest the avails thereof in good and reliable securities for the benefit of Harriet Lyman, during her life-time or until her marriage, and to pay her the income realized from such investments. It was further provided by said will that upon the death or marriage of Harriet Lyman the investments so made for her benefit should be divided among the children and heirs-at-law of the testatrix, Ann Lyman, according to the law of descents and distribution, as provided by the statutes of this state.
    One Robert Lyman, who also resides at Chicago, was named as the executor of the will in question, which after the death of the testator, was duly admitted to probate, and he thereupon entered upon the discharge of his duties as executor and trustee under the same.
    The funds arising from the sale of the property of the estate were invested by the executor in his business at Chicago, and remained so invested until July, 1887, when he rendered an account of his proceedings, as such executor, to the surrogate of Livingston county, and thereafter and upon the third day of October, 1887, upon his own application, he was permitted to resign his trust and thereupon the surrogate made an order directing him to pay the sum of $5,723.12, that representing the balance in his hands after making all proper deductions into court, to wit, to the county treasurer of Livingston county, and that while the-same remains in the hands of said county treasurer, the same shall be by him kept invested, as provided by law, and the interest and income accruing thereon paid over by him annually, after deducting his fees as such county treasurer, to Harriet Lyman, the legatee, named in said will under and pursuant to the provisions of said will.
    It further appears that the sum specified in the order was-subsequently paid over to the relator William A. Brodie, who resides in the village of Geneseo, and is treasurer of Livingston county, but whether the same has yet been invested does not appear.
    In February last the defendants, Cox, 'Goldsmith and Harrison, as assessors of the village of Geneseo, made up and completed the assessment roll of that village, from which it appears they assessed the relator, “W. A. Brodie, Treas. Liv. Co.” as “trustee for Harriet Lyman” in the sum of $5,000 personal property.
    In making this assessment all the customary and statutory requirements were complied with, and on “grievance day ” the relator appeared by counsel, who objected to the assessment upon the grounds set forth in the petition herein, but the assessors, acting under the advice of the village attorney, overruled such objections and confirmed the assessment.
    It is conceded that all the heirs-at-law of Ann Lyman are non-residents of this state.
    By the provisions of chapter 237 of the Laws of 1872, the assessors of the village of Geneseo are invested with the same powers and restricted to the same requirements and regulations with respect to the assessment of property as town assessors.
    By reference to the Revised Statutes (vol. 1, p. 389, § 5) it will be seen that town assessors are required to assess every person in the town or ward where he resides, when the assessment is made for all personal estate owned by him, including all personal estate in his possession or under his control as agent, trustee, guardian, executor or administrator, etc.
    It is not contended that the relator is in any sense the owner of the moneys in his hands, nor will it be claimed that he has possession or control of the same as “agent, guardian, executor or administrator,” and consequently the only question for the consideration of the court is whether or not he is as a trustee within the definition of that term as employed in the statute.
    The placing of these moneys in the keeping of the relator by the surrogate of Livingston county, charged him with the execution of a trust, it is true, and this would be equally true of a person who came into possession of moneys ast he committee of a lunatic, or as the executor of a will, or administrator of an estate., Why, then, did not the legislature content itself with the use of the one comprehensive term “trustee,” instead of employing several specific terms?
    The answer, within all canons of construction, is obvious that by the use of specific terms all others are intended to be excluded, and it therefore necessarily follows that the term “trustee” must be limited in its application to a person expressly authorized by statute to hold the legal title to property in trust for some specific purpose. People ex rel. Smith v. Com’rs of Taxes, etc., 100 N. Y., 215.
    The legal title to the fund in question is now in the heirs-at-law of Ann Lyman, subject to the use thereof by Harriet Lyman during her life-time, provided she remains single. By the terms of the will the control and management of this estate were committed to Robert Lyman, a nonresident of this state, as executor and trustee, but he finds it desirable to ask the court to relieve him from the further discharge of his trust, and his request is granted. What, then, becomes of the trust ? It is paid into court and the court becomes its custodian. The relator, as treasurer of the county, is designated by law as the depositary (Code Civ. Pro., § 2537), but until he transfers it to a “general or special guardian, committee, or some other trustee (§ 747),” it remains in the custody of the court and he exercises no control over it whatever. As a depositary of the fund, the relator, although charged with the duty of safely keeping and investing the same, can hardly be said to exercise the ■function of a trustee; neither can the court be deemed to “ have a residence in any particular town or ward which would authorize the assessors of such town or ward to assess it for the funds which are under its control.” In the Matter of Kellinger, 9 Paige Ch., 62. It follows, therefore, that this fund must be assessed to the real owners, at the place of their residence, and as they are non-residents of this state, it results in its practical exemption from taxation. It is further contended by the relator that within the principles laid down in the case of Williams v. Supervisors, etc. (78 N. Y., 561), this’ fund might escape taxation upon the theory that it is foreign capital brought into this state for investment. The peculiar circumstances of this case give considerable force to such a contention, but the court prefers to rest its conclusion upon the ground first stated.
    Careful examination has been given to the preliminary objections raised by the defendant’s counsel, but they fail to disclose any substantial ground for dismissing the writ.
    The act of 1880 does not appear to contemplate the giving of notice of the original application, nor does it seem to require that the trustees of the village be made parties, and the omission to state that no previous application had been, made is a mere irregularity, which, of itself, does not call upon the court to vacate the writ. Bean v. Tonnelle, 24 Hun, 353.
    For the reasons above given, the relator must have judgment declaring the assessment in question illegal, but inasmuch as it does not appear that the assessors acted “ with gross negligence, in bad faith or with malice,” no costs are awarded.
     