
    SUPREME COURT.
    Harriet L. Bulkley agt. Peter Staats, executor, &c.
    
      Action—Distinction between legal and equitable remedies are abolished— Code of Civil Procedure, section 3339 — Trust•—When and 7u>w created by will—Parties.
    
    Where C. died leaving an only daughter named Ella about eight years of age, leaving a last will and testament by which he gave all his property to this daughter, with the income and profits thereof; and by it he also desired his exeeutor, the defendant S., to take charge of his property, rent out the real estate, take care of his household furniture and other property until his daughter attained the age of twenty-one years, and requested his executor should provide his child with a suitable home and see to her education and pay for the same out of his said property, and to sell and convey his real estate at any time during the minority of his said daughter, and also sell his furniture at any time in his judgment it will be for the interest of his said child. The defendant G-. was appointed the general guardian of the child Ella and placed her at school with the plaintiff, and there is due to the plaintiff for board and tuition and supplies furnished to the child $434 68. In an action brought to procure the application of the money of the child to the payment of the plaintiff’s claim:
    
      Held, that the fund in the hands of the executor is held in trust for that purpose and its application can be enforced by the courts.
    
      Held, also, that it is immaterial what the action is called which is instituted to enforce this duty resting on the executor. There is now but one form of civil actions, the distinction between legal and equitable remedies being abolished, and if the case made by a party entitles him to any remedy it must be granted where an answer has been interposed even in disregard of the prayer for relief.
    
      Held, further, that it was proper to make the infant child and her general guardian as well as the executor parties to the action.
    
      Second Department, General Term, December, 1883.
    
      E. C. Delevan, for plaintiff.
    The will charges the executor with the duty of selling real and personal property to provide means for the maintenance and education of the infant. A court of equity has control over trustees to compel the execution of the trust (Matter of Burker, 4 Sandf. Ch.,, 617; Wood 
      agt. Wood, 5 Paige, 596). First. A fund was placed in the hands of the defendant Staats, as executor, a sufficient amount C1 ' ' of which was appropriated, by the terms of the will, to the payment of the claim in question. As the executor refuses to make such appropriation the plaintiff seeks to have it made by a decree of this court. 1. It is clear that here was a fund expressly appropriated, by the terms of the will, to the payment of claims of the character in question. The language is ; “And I do hereby request that my said executor shall provide my said child (the defendant Ella) with a suitable home, and see to her education, and pay for the same out of my said property.” The will goes on to empower the executor to sell .and convey the real and personal estate of the testator at any .time during the minority of his daughter. This power to sell, as may be clearly seen by the remainder of the clause, points directly to the payment of such claims as might there- . after be incurred for the maintenance and education of the .said Ella, thus clearly appropriating the fund (or so much ■thereof as should be necessary) to the payment of claims of this character. 2. It was thought proper to make Griffin, the guardian, a party, as the other defendants might show that he had money in his hands applicable to the payment of the claim in question, derived from the fund which the testator had provided for the payment of claims of this character whenever they should arise, which equity might require to be first appropriated to the payment of the claim in question before the remainder of the fund would become liable for its payment. It is perfectly clear that both the guardian and legatee might have, or claim to have, defenses to the action, and it was most .proper to invite them, respectively, to make any defense they, or either of them, might have or claim to have. No personal judgment is asked against either of them, and .no harm could ensue if neither appeared or answered •(See Code, secs. 446, 447, and cases cited under these sections in Bliss’ Code). 3. That this court has power in this manner '.to compel the -execution of this trust is too obvious to require argument or citation (See 6 Wait’s A. and D., 390, and cases there cited ; 3 id., 139,140,141; Benson agt. Leroy, 4 Johns. Ch., 651; Wood agt. Wood, 5 Paige, 596). The child must have support, and a trust arises in favor of anyone who furnishes it as soon as it is so furnished (Wood agt. Robinson, 22 N. Y., 564). This is 'not the case of a mere power or authority to exercise, or omit to exercise, a discretion in the support and education of this child; if it were it is enough that it has been executed. The rule is that where a power partakes of the nature of or is coupled with a trust a court of equity will enforce it, even though the power be extinguished at law by the death of the donee of it or otherwise (3 Wait’s A. and D., 140, citing 3 Ves., 370; 1 Rich. Eq., 324; 2 Allen, 101; 4 Gray, 240; 35 N. Y, 83). The pretense that no privity of contract or otherwise is shown connecting the executor Staats with the transaction is not even specious. ISTo privity was necessary. What if Staats had been dead the court would execute the trust or appoint some one to do it. But here a surrogate’s court has placed Griffin in charge of the person of the infant, and he, in compliance with his obviorrs duty, places his ward at a “ suitable home,” thus “ seeing to her education,” in fulfillment of the trust created by the will. Could more emphatic “ privity ” be imagined ? Toward the payment of the expenses so incurred by the guardian the executor furnished him (the guardian) $550 to be used, and which was used, in part payment of the obligation so incurred. Is not this sufficient privity, even if privity were necessary ? Second. It is submitted that the court has before.it sufficient and undisputed proof of a valid claim. It has also before it all the parties who could have been heard in opposition to the claim. It has also undisputed jurisdiction over the fund from which the claim must be eventually paid. A thousand suits with a thousand parties could not more fully possess the court of every fact that can be made to bear upon the question of the payment of this claim. On what principle of law is it, then, that we are sent out of court? Are the pleadings insufficient or inadequate ? They are not. But if they were, let this court now and here conform them to the facts as proved, in accordance with the settled practice which has long prevailed in this court (Coleman agt. Playsted, 36 Barb., 27; Lounsbury agt. Purdy, 18 N. Y., 515; Pratt agt. H. R. R., 21 N. Y, 305; 6 N. Y., 97; 21 N. Y., 531; 20 N. Y, 360; 13 N. Y., 127). Has the plaintiff failed to make a case against all the defendants ? Let the court give judgment against such of them as the plaintiff has not failed to make a case ag/iinst, n accordance with the law and practice that has long prevailed (Code, sec. 456, 1204-1205 ; Armitage agt. Pulver, 37 N. Y, 491), where the court says: “ The referee is bound to grant the plaintiff any relief legal or equitable to which "his allegations and proof entitle him.” It is not denied by tire defendants, or doubted by the referee, that upon these same allegations and proofs a judgment must pass against the defendant Griffin, had he been sued alone, and had the prayer of the complaint demanded such judgment against him. In Goulet agt. Asseler (22 N. Y., 225), the court says: “ The form of the complaint in this respect (whether in law or equity) would be of no importance provided the proof had been such as to entitle the plaintiff to the judgment rendered.” In the New York Ice Company agt. New York Insurance Company (23 N. Y, 359), the court of appeals, Comstock, J., says : “ I am of opinion that it was erroneous to turn the plaintiff out of court on the mere ground that he had not entitled himself to the equitable relief demanded if there was enough left of his case to entitle him to recover the sum in which he was insured,” i. e., a judgment as at law for the amount of his claim. In Emery agt. Pease (20 N. Y., 64), the court says: In determining whether an action will lie, the courts are to have no regard to the distinctions between legal and equitable remedies.” It is well settled that the court will not regard the prayer of a complaint when there is an appearance on the part of the defendant (old Code, sec. 275, new, sec. 3339), but will, if necessary, in the teeth of such prayer, give such judgment as the facts, legally proven, entitle the party to (Marquot agt. Marquot, 12 N. Y., 341; Emery agt. Pease, 20 N. Y., 62; Jones agt. Butler, 20 How., 189; Armitage agt. Pulver, 5 Trans. App., 188). It is not denied that the facts proven before the referee were fully alleged in the complaint, and legally proven upon the hearing. The fact that Griffin was sued with others, furnishes no reason why judgment should not have gone against him alone (Code, secs. 456,1204, 1205). Nor yet does the fact that he was sued in an equity action, when, indeed, he would have been liable in a legal action, without the intervention of the equitable powers of the court, furnish any reason why judgment, as in an action at law, should not have been given against him (N. Y. Ice Co. agt. N. W. Ins. Co., 23 N. Y., 357; Bidwell agt. Astor, 16 N. Y., 263 ; Greasen agt. Keteltas, 17 N. Y., 491; Scott agt. Barton 24 N. Y., 40; Bradley agt. Aldrich, 40 N. Y, 504; Durand agt. Hankerson, 39 N. Y., 287; Rome, &c., Bank agt. Eames, 1 Keyes, 588). Third. The referee has distinctly found that the defendant Griffin is liable to pay the claim in question upon a distinct promise, the validity of which is not questioned, to pay the same, and that he has “ neglected to do so.” Why then did he not direct judgment to be entered against him as he was bound to do (Armitage agt. Pulver, 37 N. Y., 494)? The referee seems to have assumed that this court has no jurisdiction in an equity action to give legal relief; that if a party enter the equity door of the court with a legal action he must, whatever may be his legal rights, go out of court in that action and re-enter the court again by its legal door if he would secure his right of action. This is a mistake. There is no distinction in this court, so far as the question of jurisdiction is concerned, between actions at law and actions in equity (Code, sec. 3339; old Code, sec. 69). The case of Adee agt. Bigler (81 N. Y., 349) seems to be relied upon to sustain this position, but it is not an authority for such a doctrine. That ease presented a mere question of convenient practice. The court says: “ The provision of the Code of Civil Procedure has not changed the practice ” which prevailed under the old system, and which required a judgment to he obtained before a court of equity could be invoked, to “ reach assets and apply them to the payment of a money demand.” This practice did not rest upon the distinction between law and equity jurisdiction, but solely upon the provisions of the statute (see 2 R. S., part 3, chap. 1, title 2, art. 2, see. 38), as is clear from the case of Donovan agt. Finn (Hopk. Ch., 59), which distinctly held that an action to discover property and compel the application of it to the payment of a j udgment, after the return of an execution, was not an equity action, but an action at law over which the court of chancery had no jurisdiction. . The statute simply provided that after judgment and the return of an execution the court of chancery should take jurisdiction of an action to compel a discovery of property, and apply such property to the payment of the judgment. But it is idle to talk about jurisdiction in law as distinct from jurisdiction in equity since the Code provides (old Code, see. 69) that “ the distinction between actions at law and suits in equity, and the forms of all such actions and suits hereafter existing are abolished, and there shall be in this state hereafter but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a civil action ; ” and (new Code, see. 3339) “ there is but one form of civil action. The distinction between actions at law arid suits in equity, and the forms of those actions and suits, have been abolished.” In Cole agt. Reynolds (18 N. Y., 74) the court of appeals says: “Whether the action depend upon legal principles or equitable, it is still a civil action to be commenced and .prosecuted without reference to this distinction. * * * If under the former system a given state of facts would have entitled a party to a decree in equity in his favor, the same state of facts now, in an action prosecuted in the manner prescribed by the Code, will entitle him to a judgment to the same effect. If the facts are such as that at common law the party would have been entitled to judgment, he will” (by proceeding as in equity) “ obtain the same judgment.” The entire effect of the case of Adee agt. Bigler is to establish as a matter of convenience, and in compliance with the provision of the Revised Statutes above cited, that in case a party desires to obtain a discovery of property and have it applied to the payment of his claim that he must first put the claim into judgment so as'to avoid the inconvenience of trying one part of the same case by a jury (when that should be necessary) and the other by the court. But there is not the slightest analogy between such a case and the case at bar. But if there were more or less analogy the provision of the Revised Statutes applies to one case and does not apply to the other. This practice never obtained outside of that class of actions known as creditors’ bills. When a party asserts an equitable lien upon a fund he means that he has a claim which a court of equity will enforce against such fund or property. Was a court of equity ever known to say “ you must first put your claim into judgment before we can consider whether it is an equitable lien upon the fund in question ” (See Williams et al. agt. Ingersoll et al., 89 N. Y., 508). Fourth. The plaintiff, upon the allegations and proofs, was entitled to a judgment against the defendant Ella on the ground that the claim in question was for necessaries (Randall agt. Sweet, 1 Denio, 460; Smith agt. Oliphant, 2 Sandf., 306; 2 Paige, 419 ; 9 Cow., 626 ; 17 Barb., 428). Fifth. All the facts being before the court, this court will render such judgment as the referee should have directed to be entered.
    
      E. P. James, for defendant Staats.
    
      Franklin Staats, for defendant Griffin.
   Dykman, J.

— Charles Curry died leaving an only daughter name Ella Curry, about eight years of age. He also left a' last will and testament by which he gave all his property to this daughter, with the income and profits thereof. By it he also desired his executor, the defendant Peter Staats, to take charge of his property, rent out the real estate, take care of his household furniture and other property until his daughter attained the age of twenty-one years. Then follows these words:

“ And I do request that my said executor shall provide my said child with a suitable home and see to her education and pay for the same out of my said property and to sell and convey my real estate at any time during tfie minority of my said daughter, and also sell my furniture at any time in his judgment it will be for the interest of my said child.”

The will was proved and Staats became the executor and the defendant, Hobart Griffin, was appointed the general guardian of the child Ella. He placed her at school with the plaintiff, who is the proprietor of a boarding school, and there is due to her for board, tuition and supplies furnished to the child, $434.68.

This action is brought to procure the application of the money of the child to the payment of the plaintiff’s claim, and there is sufficient for that purpose now in his hands.

It is to be noticed that by this will the property is all given to the child absolutely, and then the executor is clothed with a power of sale. Then the executor is requested to take charge of the property, rent the real estate, provide the child with a suitable home, see to her education “ and pay for the same out of my said property ” so it comes to this: the executor holds property belonging to this child, out of which he is to pay sufficient to provide her with a suitable home and her education. The fund is held in trust for that purpose, and its application can be enforced by the courts.

It is quite immaterial what the action is called which is instituted to enforce this duty resting on the executor. There is but one form of civil actions in this state (Code Civil Pro., sec. 3339). In the administration of justice, our courts are untrammeled by distinction between legal and equitable remedies. They are all abolished and parties are no longer turned out of court because they make mistakes in the remedy they pursue.

On the contrary, if the case they make entitles them to any remedy, it must be granted where an answer has been interposed even in disregard of the prayer for relief (Emery agt. Pease, 20 N. Y, 62).

In view of these principles there has been an evident miscarriage of justice in this case. This is not an action to reach assets and apply them to the payment of a claim. It is an action to compel the performance of a duty or if you please to call it so, an action to enforce and compel the execution of a trust. The contract for the maintenance and education of this child was made by her. guardian with the plaintiff, with the knowledge of the executor, and the justice of the claim is manifest and undisputed.

The executor has in his hands a fund expressly appropriated by the will to the payment of claims like that of the plaintiff and the court will, compel its application. In this case a trust has been created by the will for the payment of this and other similar debts, and the courts are bound to take care that the trust is executed. The assets and property of this estate were placed under the jurisdiction of the court by the creation of the trust (Benson agt. Leroy, 4 John Ch., 650).

Ho difficulty will be experienced in entering the proper judgment. It was proper to make the infant child and her general guardian parties to the action to the end that they might be afforded an opportunity to dispute and litigate the plaintiff’s claim.

Besides, it is the property of the child in the hands of the executor which is sought to be applied to payment of the claim. The executor is a proper party too, because he is to be forced to the performance of his duty. The judgment will be in form against all the defendants for the amount of the plaintiff’s claim to be paid by the executor out of the funds in his hands appropriated by the will.

The judgment should be reversed, the order of reference vacated and a new trial granted, costs to abide the event.  