
    Eliza S. Olmstead, Appellant, v. Elizabeth F. Dodd, as Executrix, etc., of Edward Dodd, Deceased, Respondent.
    Second Department,
    May 12, 1911.
    Limitation of action—suit against trustee for an accounting.
    Where a trust deed, vesting the trustee with power to sell lands, directed him to pay the income from the estate for the maintenance of the creator and his family and at his death to convey the corpus remaining to persons named, the remainderman’s right of action against the trustee for an accounting began to run on the death of the creator and was barred by the lapse of twenty years, if there was no fraud or misrepresentation by the trustee of which the remainderman was ignorant.
    Appeal by the plaintiff, Eliza S. Olmstead, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Suffolk on the 25th day of January, 1911, upon an order granting the defendant’s motion for judgment on the pleadings; also from an order entered on the 31st day of December,. 1910, granting the defendant’s motion for judgment bn the pleadings, and also from an order entered on the 25th day of January, 1911, directing the entry of the judgment appealed from.
    
      R. Dulany Whiting [Robert L. Stanton with him on the brief], for the appellant.
    
      Louis Lowenstein, for the respondent.
   Burr, J.:

The vital question in this case is: When did plaintiff’s cause of action accrue?

On November 28, 1864, James E. Dodd, by an instrument in writing, conveyed'to Edward Dodd all of his real and personal property in trust, to take possession of the same, collect the outstanding debts and demands due to him,'and also the rents of his real property, With power “To sell and dispose tif and grant and convey at his discretion all or any part of said real estate and convert the same into-money.” Out of the personal property or the proceeds of the sale of said real estate he was to pay all incumbrances upon the real estate conveyed, and all the debts and liabilities of the grantor. He was then directed to invest the residue of the personal property and of the proceeds of the sale of said real property, and receive the interest and income thereof, and apply the same, together with the rents and profits of any real estate remaining -unsold, to the support and maintenance of the said James E. Dodd and his family. Upon the decease of the said James E. Dodd the trust was to terminate, and it thereupon became the duty of the said Edward Dodd to “pay over, convey and transfer the whole residue of Said property remaining' after paying there-out the funeral and testamentary expenses ” of said James E. Dodd to such of his children or their descendants as he should; by his last will and testament, appoint, and in default of such appointment to his three daughters, of whom plaintiff was one.

James E. Dodd died November 18, 1865, without having executed the power of appointment reserved and contained in said deed of trust. Thereafter there was no - longer a subsist-" ing active trust, and plaintiff became entitled immediately to one-third of the residue of the property conveyed under said trust deed. (Gilmore v. Ham, 142 N. Y. 1, 10.)

It was then the duty of Edward Dodd to turn over the corpus of the trust fund to plaintiff and her sisters, and upon- his failure to do so, plaintiff could- at once have maintained an action against him to compel such transfer and for an accounting. She failed, to do this, and inore than twenty years after: ward, in the year 1908, Edward Dodd died, leaving a last will and testament, which named the defendant as the executor thereof. The said will was proved at a Surrogate’s Court-in Suffolk county, June 1, 1908, and letters testamentary thereunder were issued to defendant.

This action is brought to compel an accounting of the acts of defendant’s testator relative to said trust estate. Plaihtiff contends that it is one to procure a judgment other than for a sum of money on the ground of fraud in a case which, on the 31st day of December, 1846, was cognizable by the Court of Chancery, and that in such case the statute did not begin to run until the discovery of the facts constituting the fraud. (Code Civ. Proc. § 382, subd. 5.) But the complaint alleges no fraud upon the part of defendant’s testator. It alleges no representations on his part or any conduct calculated to or which in fact did influence the execution and delivery to him of the trust deed, or which influenced and controlled the acts of plaintiff to her hurt. Neither is this a case where he feloniously acquired possession of the property, and in this respect it is distinguishable from Lightfoot v. Davis (198 N. Y. 261), principally relied upon by appellant. He lawfully received the property as trustee. His breach of duty arose when, upon the expiration of the trust term, he failed to turn over one-third of the property to the plaintiff. The complaint alleges that, subsequent to the death of James E. Dodd, the said Edward Dodd sold certain of the real property conveyed by said trust deed and received the proceeds thereof, and failed to pay over the same, and that plaintiff did not discover the fact of such sale until 1901. But the trust deed expressly authorized him to sell such property, if, indeed, it did not require him to do so. It may be that the power of sale fell with the expiration of the trust term at the death of James E. Dodd. It is not necessary for us to decide this question at the present time. If it survived, the proceeds of sale were substituted for the property sold; if it did not survive, it may be that this attempted. sale was ineffective. But plaintiff’s cause of action does not arise out of the sale, but out of her right to receive the property which was the subject of the sale, and this right accrued at her father’s death. There is no allegation in the complaint that plaintiff was ignorant of the existence of the trust deed, or of its contents, and if so, she was chargeable with knowledge of her rights thereunder. But if she had been thus ignorant, in the absence of allegations in the complaint that through fraudulent conduct of the said Edward Dodd such knowledge was withheld from her, her ignorance would not suspend the running of the statute. (Wood v. Young, 141 N. Y. 211.)

The judgment and orders appealed from should be affirmed, with costs.

Jénks, ’ P. j., Thomas, Carr and Woodward, JJ:, concurred.

Judgment and orders affirmed, with costs.  