
    The People’s Trust Company, as Substituted Trustee, Under the Last Will and Testament of Margarethe Herrmann, Sometimes Called Margarethe Harman, Deceased, Respondent, v. Jacob Harman, Individually, and as Surviving Executor, etc., of Margarethe Herrmann, Sometimes Called Margarethe Harman, Deceased, and Others, Respondents; Sarah Elizabeth Harman Schwalbach and Ida S. Smith, Appellants.
    
      Mortgage foreclosure decree in a County Court— direction therein that any surplus bopaid to a trust company to hold in trust — action by the trust company to account '—proof to sustain an assignment by a legatee to the executor—when an expectancy-is'not covered by an assignment.
    
    Where the will of a testatrix devises her real estate to her executors in trust to-pay the income to her husband during his life, and upon his death to sell the-same and divide the proceeds among certain persons, the County Court has; jurisdiction, in an action brought- therein to foreclose a mortgage on the trust, property, to direct the surplus moneys arising on the foreclosure sale to he- , paid to the executors,, upon their filing a bond, or in default thereof, to a trust-company, “ to be by such company held and invested as trustees thereof upon the trust in said will declared.”
    Where, after the death of the testatrix’s husband, several distinct interests contest the proper method of distributing the principal of the fund- paid to the-trust company under such order, the company is justified in bringing an action to settle its accounts and for a distribution of such fund, the costs of which action are in the discretion of the. court.
    An assignment by a remainderman to one of the executors of ail his interest-under the will, found among the papers belonging to the estate of the testatrix, in the possession of the attorney for the executors, is ineffective in the absence of any evidence tending to establish the fairness of the transaction between the executor and the remainderman, or the consideration for the * assignment, or its delivery to the executor.
    
      ■Semble, that the assignment which purported to assign “ all my legacy or legacies and interest of every name and nature which I now have or may at any time , be entitled to under and by virtue of the provisions of the last will and testament of Margaret Harman, late of the city of Brooklyn, deceased, and all sums of money or other property, real or personal, now due or to grow due on account thereof, giving, and granting unto the said Margaret Kuhl the same rights and interests therein as I have by reason of the provisions, devises or bequests in my favor contained in said will or the interest that I have or may be entitled to in the estate of said Margaret Harman, deceased,” would, although valid in other respects, be ineffective to convey any estate or interest in expectancy which the remainderman, executing the assignment, might acquire upon the death of another remainderman.
    Appeal by the defendants, Sarah Elizabeth Harman Schwalbach :and Ida S. Smith, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 9th day of March, 1899, upon the report of a referee judicially settling the account of the People’s Trust Company, as trustee .under the last will and testament of Margarethe Herrmann, deceased. '
    
      James D. Bell, for the appellant Schwalbach.
    
      John H. Corwin, for the appellant Smith.
    
      T. Ellet Hodgskin and George W. Wingate for the respondent trust company.
    
      George H. Harman, for respondents Harman, and others.
    
      Roger S. Baldwin, for the respondent Kuhl.
   Goodrich, P. J.:

The plaintiff is in possession of a fund of about $5,000 which it ■claims to have received as substituted trustee under the will of Margarethe Herrmann (or, as she was sometimes called, Margarethe Harman), deceased. This action is brought to settle the accounts and distribute the fund among the parties entitled thereto. The action was referred, and upon the report of the referee a judgment was ■entered ordering, among other things, payment of two-sixteenths of' the fund to Ida S. Smith' and two-sixteenths to George A. Kuhl. From this part of the decree the defendant Sarah E. H. Sohwalbach appeals. This appeal brings up" all the evidence in ■' the-record.. The defendant Ida S. Smith also appeals, on the judgment roll alone, on the ground that the complaint states no cause-of action as to -her, and on the ground that the plaintiff is -not. a-substituted, trustee under the will of Mrs. Harman..

Mrs. Hannah died in 1887, leaving a will which was duly admitted to probate by the surrogate of the county of Kings, and letters testamentary were issued to Andrew Harman, Si'., Jacob Ilarman and Margaret Kuhl. Andrew Harman, Sr., and Mrs. Kuhl died in May, 1898, leaving Jacob sole surviving executor.

The testatrix devised her real estate to her executor's to pay the income to her husband, Andrew Harman; Sr., during his life, and upon his death to sell the same and divide the proceeds among certain persons named in the will. Two-sixteenths of the proceeds of the real estate ■ were to be paid to Margaret Kulil, one-sixteenth to-Sarah E.. H. Schwalbach and one-sixteenth to Andrew Harman, Jr. Margaret Kuhl • died intestate on May thirteenth, leaving two children, the defendants Ida S.- Smith and George A. Kuhl, her only heirs at law. Andrew Harman, Jr., died in May, 1895, leaving a widow and a daughter, the defendant Sarah E. H. Schwalbach.

Among the property left by Maigarethe Harman was a house, No^ 203 South Ninth street, Brooklyn, on which there was a mortgage. This' mortgage was foreclosed in an action'in'the Oount'y Court of Kings county, the final judgment directing the treasurer of the county of Kings -to pay the balance of. surplus moneys, to the-executors of Mrs. Harman’s will, upon their filing a bond for thefaithfnl discharge of their trust, and in default' of giving such bond,, to pay such balance of said surplus moneys to the People’s Trust Company, to be by such company held and invested as trustees thereof upon the trust in said will declared, and the income applied, to the use of said Andrew Harman (also called Andrew Herrmann) during his natural life.” This fund was paid to the plaintiff in 1890, and it paid the income to Andrew Harman, Sr., during his life.

Jacob Harman, the only surviving executor, does not question the validity of the substitution by the court of the plaintiff in the place of the executors named in-the will. 'The only -party who raises any objection is the defendant Ida S. Smith, and the ground of her . appeal has already been stated.

As to the question of the power of the County Court to substitute the plaintiff as trustee, it is sufficient to say that inasmuch as that court had jurisdiction of the action, it possessed the same “ jurisdiction, power and authority in and over the same, and in the course of the proceedings therein, which the Supreme Court possesses in a like case; and it .may render any judgment, or grant either party any relief, whicli the Supreme Court might render or grant in a like case, and may enforce its mandates in like manner as the' Supreme Court. And the county judge possesses the same power and authority,, in the action or special proceeding,-which a justice of the Supreme Court possesses, in a like action or special proceeding brought in the Supreme Court.”. (Code Civ. Proc. § 348.)

In Mead v. Langford (56 Hun, 279), the court, referring to this section of the Code, said: This language is very comprehensive, and * * * embraces every kind of relief which may properly be said to be incidental to the foreclosure, even though such relief might be made the subject of an independent action.” It is, however, somewhat immaterial, except possibly on the question of costs, whether or not the plaintiff holds the fund as substituted trustee under the will, for it holds it under the order of the court and as depositary, and all parties in interest are before the court. Several distinct interests are contesting the proper method of distributing the fund. Such a contest justifies the bringing of this action, and costs under such circumstances are in the discretion of the court. The entire costs awarded to the parties amounted to upwards of $1,000, about one-half of which is payable to the plaintiff, the balance to the several parties who have appeared in this action. We think this award of costs was within the discretion of the court, and, with the exercise of that discretion, we are not disposed to interfere.

The defendant Mrs. Schwalbach appeals from the part of the decree which awarded to Ida S. Smith and George A. Kuhl each two-sixteenths of the fund. Mrs. Schwalbach took one-sixteenth of the fund under the will. She also inherited the one-sixteenth which was by the will bequeathed to Andrew Harman, Jr., her father, who died, leaving her his only heir at law. She thus becamé entitled to two-sixteenths. These two shares are claimed by George A. Kuhl and Ida S. Smith, children of Margaret Kuhl, under an assignment which they claim was made to then- mother by Mrs. Schwalbach.

Ben jamin Baker,, who has been all the time attorney of the executors and trustees and had charge of the papers of the estate of Margarethe Harman, produced under subpoena an assignment dated October, 1887, from the defendant Sarah E. H. Schwalbach'to Margaret Kuhl individually, which purported to assign to the - latter “ all my legacy or legacies and interest of every' name and nature which I now have or may at any time be entitled to under and by virtue of the provisions of the last 'will and testament of Margaret Harman, late of the city - of Brooklyn, deceased, and all sums of ¡money or other property, real or personal, now-due or to grow due on account thereof, giving and granting unto the said Margaret Kuhl the. same rights and interests therein as I-hav-e by reason of the'provisions, devises or bequests in- my favor contained in said will or -the interest that I have of may be-entitled to in the estate of said Margaret Harman, deceased.” ít'dóes-:not appear that this document -ever came into the possession of Mrs. Kuhl. • It was only stated to.have, been found by Mr. Baker among the .papers belonging to the estate of Margaretlie, the testatrix.

Mrs. Schwalbacb’s contention is, first, that there was -no delivery of the assignment'to-'Mrs. Kuhl, -and that the latter being trustee, the duty is cast upon her- and- those taking under her to show the .fairness of the transaction and that there is no evidence in the case to establish such fairness,-citing Cowee v. Cornell (75 N. Y. 91), where Judge Hand-said : “But the principle with which we are now concerned does not absolutely forbid the dealing, but it presumes it unfair and fraudulent , unless the contrary is affirmatively shown, -x -x- * The law presumes in the case of guardian and ward, trustee and cestui que trust, attorney and client, and perhaps physician and patient, from the relation of the parties itself that their situation is unequal and of the character I have definedand that relation appearing itself throws the burden upon the trustee guardian or attorney of showing the fairness of his dealings.”

In Matter of Will of Smith (95 N. Y. 516) Judge Andrews, speaking of this subject, said (p. 522): “This.rule does not proceed upon a presumption of the invalidity of the particular transaction without proof. The proof is made, in the first instance, when the' relation and the personal intervention of the party claiming the benefit is shown. The law is not so impracticable as to refuse to take notice of the influence of greed and selfishness upon human conduct, and, in the case supposed, it wisely interposes by adjusting the quality and measure of proof to the circumstances to protect the weaker party, and, as far as may be, to make it certain that trust and confidence have not been perverted or abused.” As the record contains no evidence whatever tending to establish the fairness of this transaction between the trustee and the' cestui que trust, the authorities cited compel the determination that the assignment is invalid, all the more that there is no proof of its consideration or of the delivery to Mrs. Kuhl.

It is proper to say, in addition to this conclusion, that while, if otherwise valid, the assignment would have transferred the interest which the defendant Schwalbach took directly under the will of Mrs. Harman, it would not convey any interest or estate of Mrs. Schwalbach expectant upon the death of her father, as this interest was a mere expectancy which might, or might not, materialize, depending upon the testacy or intestacy of. the father. Nemo est haeres mventis. This expectancy was not, in ^ terms, included or described in the assignment to Mrs. Kuhl. The interest attempted to be conveyed thereby and defined therein was confined to the share devised to her by the will, and not to the share of her father thereunder.

The judgment should be modified so that the defendant Sarah E. H. Schwalbach shall receive two-sixteenths of the fund,-viz. : One of the two-sixteenths awarded to George A. Kuhl and one of the two-sixteenths awarded to Ida S. Smith, and, as modified, the judgment should be affirmed, with costs of the appeal to the defendant Sarah E. H. Schwalbach and to the plaintiff out of the fund.

All concurred.

Judgment modified so that the defendant Sarah E. H. Schwalbach shall receive two-sixteenths of the fund, viz.: One of the two-sixteenths awarded to George A. Kuhl and one of the two-sixteenths awarded to Ida S. Smith, and, as modified, affirmed, with costs of the appeal to the defendant Sarah E. H. Schwalbach and to the plaintiff out of the fund.  