
    Clarissa Lammer, et al., App’lts, v. Helen G. Stoddard, exr’x of Edward Lammer, deceased, et al., Resp’ts.
    
      (Court of Appeals,
    
    
      Filed November 23, 1886.)
    
    1. Mortgage—Payment—When non-production of bond and mortgage evidence of payment.
    Where one of two executors loaned the other certain moneys held in trust under the will on bond and mortgage at a date forty-eight years before the borrower’s death and thirty-four years before the lender’s death, and after the death of both, the mortgage was found uncanceled of • record, but neither the original of the bond or mortgage could be found, the borrower during most of the time having had ample means, and this suit was brought by a beneficiary of the fund named in the will. Held, that the non-production of the bond and mortgage was conclusive evidence of their payment.
    2. Trustee—Statute of limitations—When it begins to run against BENEFICIARY OF AN EXPRESS TRUST.
    That as against a trustee of an actual express subsisting trust, the statute does not begin to run against the beneficiary until the trustee has openly to the knowledge of the beneficiary removed, disclaimed or repudiated the trust. '
    3. Same—When' it begins to run in favor of a trustee who becomes SUCH EX MALEFICIO.
    Where one becomes a trustee ex maleficio, or by implication or construction of law, the statute of limitations begins to run against the party having the right to enforce the trust from the time the wrong was committed by which the party became chargeable as trustee by implication.
    Appeal from a judgment of the general term of the city court of Brooklyn, affirming a judgment in favor of defendants in an action brought to recover the amount of a loan of trust money.
    Joseph Lammer died February 27,1831, leaving a widow, Mary Lammer, and five children, Edward, Fanny, Joseph, Clarissa and John A.,, the last three being the children also of Mary, who was his second wife, and being at their father’s death aged respectively seven, six and three years.
    Joseph Lammer also left personal estate amounting to upwards of $30,000, and a will in which he bequeathed to his wife absolutely the sum of $2,000, and created a trust as follows:
    “I give and bequeath unto my said wife, Mary, the' further sum of $3,000, lawful money aforesaid, to be paid to her as soon as conveniently may be after my decease, in trust, nevertheless, that she, my said wife, shall have, use and take the interest accruing and to arise from the said $3,000, during the minority of my sons Joseph and John and daughter Clarissa, to be applied for and towards the support and maintenance and education of said three children, and to pay to the said children, Joseph, John and Clarissa, as they shall respectively arrive at the age of twenty-one years, the sum of $1,000 each.”
    
      “ My will is that the sum of $3,000, hereinbefore given in trust to my said wife, Mary, shall be by her put at interest by good bond and mortgage security upon real estate, to be approved of by my executors hereinafter named, and in case either or all of my said children, Joseph, John and Clarissa, pha.ll die' during their minority and without lawful issue, then my will is, and I do hereby give and bequeath unto my said wife, Mary, the sum or sums of money which such child or children would have been entitled to receive if he, she or they had lived to the age of twenty-one years.”
    And he appointed his wife and his son Edward executors of his will.
    The will was admitted to probate; the executors qualified as such and filed an inventory May 24, 1831. The $3,000 for the trust fund was paid to Mary Lammer, and on the 7th day of June, 1831, she loaned $3,000 to one Talbot and took his bond and mortgage to secure the same, and they were paid June 1, 1833. At the latter date she loan the same amount to one Smith, and took his bond and mortgage to secure the same, and they were paid February 3, 1836.
    About the day last named she loaned Edward Lammer $5,000, and took from him a mortgage dated February 1, and acknowledged February 5, 1836, conditioned to pay that sum with interest on the first day of February, 1837,
    It appears from the recitals in the mortgage that a bond was also given to which the mortgage was collateral. The real estate mentioned in this mortgage was covered by a prior purchase money mortgage given by Edward Lammer, which was foreclosed in 1837; and the real estate was sold upon such foreclosure for an amount which left nothing to apply upon the mortgage given to Mary Lammer.
    Edward Lammer was a merchant in New York, and was burned out by the great fire which occurred December 16, 1835, and thereby became financially embarrassed and unable to pay his debts. A few years thereafter he became solvent and so continued to the time of his death in July, 1884, when he left an estate inventoried and valued at nearly $65,000. He was never married, and he left a will in which he bequeathed to his half sister and brother, Clarissa and John, each $1,000, and gave the remainder of his estate to other relatives. Joseph Lammer died in 1840, and Mary Lammer died December 28, 1870. She always lived in Brooklyn, and Edward Lammer lived in the same city and in New York, and during twenty years prior to his death he made a monthly allowance of twenty dollars to Clarissa which, while she took care of her sick mother, was increased, to twenty-six dollars.
    After the death of Mary Lammer the mortgage given to her by Edward was found to be uncancelled upon the record. Clarissa was appointed administratrix of her mother’s estate, and then she and her brother John A. commenced this action to enforce the trust as to the $3,000 against the estate of Edward.
    The trial judge found “as a matter of fact that Edward had paid the amount of the mortgage to Mary Lammer in her life-time, and refused to find that the trust fund was included in the $5,000 loaned to him, and he dismissed the complaint.
    
      P. V. B. Stanton, for app’lts; Jesse Johnson, for resp’ts.
   Earl, J.

The finding of the trial court, affirmed by the general term, that Edward Lammer had paid to Mary Lammer the amount loaned to him by her, which was secured by his mortgage, was founded upon sufficient evidence, and concludes us. The loan was made forty-eight years before Edward’s death, and thirty-four years before Mrs. Lammer’s death, and during most of that time he possessed ample pecuniary ability to pay. She was not shown to possess much means, and presumably needed the means for the support of herself and infant children. She and Edward always resided near each other, and, during twenty years, he made a considerable allowance to his sister for the benefit of herself and mother, thus showing that he was not only disposed to be just, but liberal. The bond and mortgage were not in her possession at her death, were not then shown to be in existence, and were never, until shortly before the commencement of this action, by either of the plaintiffs, the youngest, of whom at her death was forty-two years old. Under such circumstances, the non-production of the bond and mortgage furnishes very satisfactory and conclusive evidence of their payment. Bergen v. Urbahn, 83 N. Y., 49.

But the statute of limitations furnishes an equally conclusive defense to this action. If it be assumed that the trust fund was loaned to Edward Lammer with notice of the trust, under such circumstances that the trust, within a proper time, could have been enforced against him or his estate, the lapse of time would still stand in plaintiffs’ pathway. If this were an action to recover the debt evidenced by the bond and mortgage, it is conceded that it would have been barred. But the action is to establish and enforce a trust, and hence the claim is made that it is not barred. It is undoubtedly generally true that, as against a trustee of an actual, express, subsisting trust, the statute does not begin to run against the beneficiary until the trustee has openly, to the knowledge of the beneficiary, renounced, disclaimed, or repudiated the trust. But Edward Lammer was not the actual trustee of this fund, and he never acknowledged a trust as to the money loaned him. He could, at most, have been declared a trustee ex maleficio, or by implication or construction of law; and in such a case the statute begins to run from the time the wrong was committed by which the party became chargeable as trustee by implication. Wilmerding v. Russ, 33 Conn., 67; Askhurst's Appeal, 60 Pa., 290; McClane v. Shepherd, 21 N. J. Eq., 76; Decouche v. Savetier, 3 Johns. Ch., 190; Ward v. Smith, 3 Sandf. Ch., 592; Higgins v. Higgins, 14 Abb. N. C., 13; Clark v. Boorman, 18 Wall., 493; Perry, Trusts, § 865.

We, therefore, see no reason to doubt that the judgment below was right, and it should be affirmed, with costs.

All concur.  