
    Beakes Dairy Company, Appellant, v. William G. Berns (Sometimes Called William C. G. Berns or William H. Berns, Jr.), Respondent, Impleaded with Charlotte Berns, Individually and as Administratrix, etc., of William H. Berns, Deceased, and Samuel Wilmarth, Defendants.
    Second Department,
    July 29, 1910.
    Judgment — res adjudícala—when decree of surrogate bars subsequent action.
    While a decree of the surrogate rendered upon an issue raised by the creditor of an estate determining that the administratrix is not entitled to certain moneys placed in trust by her intestate remains unreversed, the creditor cannot maintain an action to compel the payment of the trust funds to the administratrix for the purpose of paying debts. .
    Appeal by the plaintiff, the Beakes Dairy Company, from a judgment of the Supreme Court in favor of the defendant William G. Berns, entered in the office of the cleric of the county of Kings on the 9th day of November, 1909, upon the decision of the court rendered after a trial at the Kings County Special Term.
    
      E. Walter Beebe [Herbert S. Brussel and C. W. Bennett with him on the brief], for the appellant.
    
      James A. Sheehan, for the respondent.
   Thomas, J.:

William H. Berns died insolvent April 27, 1905. He was the father of the respondent William G. Berns, and the debtor of the plaintiff in the sum of $592.78. Before the indebtedness accrued the father deposited $3,000 in each of two savings banks to the credit of “ William H. Berns in trust for William G. G. Berns,” and agreed with William G. Berns that he, the depositor, should .have the use of the two funds so deposited during his own. life, and the absolute power of disposition thereof for his own benefit during his own life, .and that what remained at his' death was to belong absolutely to William G. Berns.

In his lifetime the father withdrew moneys' from the accounts and used the same in payment of his own individual indebtedness, so that at the time of his decease -there was< on deposit with the Brooklyn Savings Bank to the credit of the aforesaid ' account Upwards of $1,800,. and at the same time there was on deposit with the South Brooklyn Savings Institution to the credit of the said ■account upwards of. the sum of $300.

Charlotte Berns, the widow, suffered her son to take the two bank books, and the latter appropriated the same to his, own use. The plaintiff objected to the accounting of the'administratrix, to which defendant William G. Berns .was a party, that “ the administratrix has not charged herself therein [her account] with all that was realized, or that with reasonable diligence might have been realized upon the sale of the personal property therein mentioned.” The moneys in question were the subject of inquiry, and the decree of the surrogate shows with what she was charged, and does not Contain these moneys."

The unreversed decree of the surrogate determined, upon an issue raised by the plaintiff, that the administratrix was not entitled to-the money, and that she was not bound to usé diligence to realize it. That decree has been plead in bar in this action. Upon a former appeal in this action this court decided (128 App. Div. 137) that the trust was void, and that the fund went to" the administratrix. Thus it was-decided, at the instance of the plaintiff, that the administratrix was entitled to a fund,' although there was a prior valid existing.decree of a court of competent jurisdiction upon the same, issue, raised by the same complaining party, that- she was not entitled to it. A judgment for the plaintiff here would necessarily direct, pursuant to the former, decision, of this court, that. the fund should be paid. over to- the administratrix for payment of debts, under the direction of a surrogate whose standing decree is •that she is not entitled- to it for such distribution. It is certain -that .this court did not intend to create such anomaly,, and if its decision would technically have that effect, there should be reconsideration at this time.

The plaintiff must, to maintain the action, rely upon title in the administratrix, or upon some special property in or lien on the fund accruing to it. By wlia't authority does the plaintiff substitute itself as plaintiff? At plaintiff’s request the trial justice found that the administratrix after demand had refused to bring this action; that she had taken the position that the moneys formed no part of the estate; that she was of no pecuniary responsibility, had given a nominal bond as administratrix,.and that it would be manifestly improper for her to have control of a suit against her stepson. If reference be made to the proceedings in Surrogate’s Court it will be found that this plaintiff similarly accused her, and that the decree negatives the accusation, and in effect decides that it was not her duty to bring the suit, and that she was not entitled to realize the moneys. Defeated in its attempt, the plaintiff betook itself to this court, and attempts to assert a cause of action, upon the ground that the insolvent administratrix of an insolvent estate had been delinquent in herself enforcing it. And all this time the decree of the surrogate stands, solemnly adjudging that she has been dutiful to the creditors, including the one who, at this time, has appropriated her cause of action upon the ground that she has neglected or refused herself to bring the action. The plaintiff, driven to the other position, that it has by its own right a cause of action, is equally unsustained. In its brief it is stated: The plaintiff’s contention is, and we believe that this court has so held in its decision upon the previous appeal, that the funds in the savings banks were a part of the personal property of the decedent, and liable for his debts.” In such case, has the plaintiff any title to, special property in, or lien on, the. moneys ? I discover nothing to aid either alternative, and the diligence of the plaintiff has discovered nothing.

These views lead to affirmance of the judgment, without recon- ■ sideration of the question whether the moneys vested absolutely in the son upon the death of the father, freed from the latter’s debts, where appropriation therefor had not been effected during his lifetime.

Hirschberg, P. J.,. Biter, Rich and Care, JJ., concurred.

Judgment affirmed, with costs.  