
    Andrew L. Fernandez and Others, by John B. Cole, their Guardian ad Litem, Respondents, v. José M. Fernandez, Appellant, Impleaded with Others.
    
      Equity—jurisdiction to prevent a devastavit.
    A complaint in an equitable action alleged, among other things, that one José Fernandez, residing in Cuba, an executor of an estate in which the plaintiffs were interested as remindermen, and of which the'greater part was invested in a mortgage upon a plantation in Cuba, had refused to join with his co-executor, also a Cuban, in an action to foreclose the mortgage then past due, and that in consequence of his refusal such foreclosure action was, under the Spanish law, impossible ; that subsequently said José Fernandez, in consideration of a gross sum to be paid annually in lieu of interest, had entered into an agreement with the owner of the plantation for the extension of the payment of the mortgage for a period which was practically indefinite, the agreement making no provision for a guaranty of the amount of the mortgage on the part of the mortgagor, but releasing him from liability in case the improvements on the plantation were destroyed.
    The complaint further alleged that the agreement was fraudulent and was executed for the personal advantage of José Fernandez, and that, as the plantation was in a country now in insurrection, it was liable to be laid waste and the plaintiffs' interest therein destroyed, and that they had no adequate remedy at law.
    A demurrer was interposed by the defendant, José Fernandez, upon the ground, among other things, that a cause of action for an account as to the property in the hands of the executors was improperly joined with a cause of action requiring the executors to furnish a bond for the safekeeping of the property intrusted to them, and with one making the demurring defendant liable for any loss occasioned by him to the estate; and that an alleged cause of action against the demurring defendant and the owner of the estate to cancel the extension of the mortgage and to enjoin them from endangering the estate to the injury of the plaintiffs was improperly joined with others.
    
      Held, that the demurrer could not be sustained; that the real purpose of the action was to invoke the power of a court of equity to interfere for the protection of the plaintiffs, and to prevent the executor and a debtor of the estate, alleged to be in collusion with him, from despoiling the estate;
    That the complaint stated but a single cause of action, namely, the protection and preservation of the property in which the plaintiffs were interested as remaindermen, and that it was properly within the jurisdiction of the court, as a court of equity, to protect the beneficiaries of a trust against persons wrongfully and fraudulently dealing with the trust estate.
    Appeal by the defendants, José M. Fernandez and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 29th day of January, 1897, upon the decision of the court rendered after a trial at the New York Special Term overruling his demurrer to the complaint, and also from an order entered in said clerk’s office on the twenty-ninth day of January directing the entry of said judgment.
    
      Benjamin N. Cardozo and Alfred Lyons, for the appellant.
    
      Henry Brill, for the respondents.
   Patterson, J.:

This appeal is from an interlocutory judgment overruling the demurrer of the defendant José M. Fernandez, individually and as-executor, etc., of Robert Fernandez, deceased, to the complaint herein. There were three grounds of demurrer assigned : First. That the court has no. jurisdiction of the subject of the action. Second. That the complaint does not state facts sufficient to constitute a cause of action. Third. That two or more causes of action are improperly united. The first ground of demurrer is manifestly not well taken and requires no consideration.

As to the second ground, it is sufficient to say that the complaint does state facts sufficient to entitle the plaintiffs to some relief in this action, as will appear from an analysis hereinafter made in connection with the consideration of the third ground of demurrer.

The specifications of that third ground of demurrer are that there-are united in the complaint, first, a cause of action against the demurring defendant and Andrew Fernandez for an account of the property, goods and credits coming into their hands as executors of the will of Robert Fernandez, deceased; second, an alleged cause of action against those defendants requiring them to furnish a bond to the plaintiffs, or other adequate security, for the safekeeping of the property intrusted to them as executors, etc., of Robert Fernandez, deceased; third, an alleged cause of action making the demurring defendant liable for any loss occasioned by him to the estate. These three specifications are constructed from the prayer for relief contained in the complaint. An independent cause of action as to each is not set up, as to which independent cause of action one item of relief alone would be applicable, but the facts-alleged in the complaint are set forth as constituting a single cause of action, and are pleaded in such a way that either or all of the several kinds of relief prayed for may be awarded according to the facts as they will be made to appear at the trial, or as they would stand confessed, without answer.

The fourth specification of the third ground of demurrer is that an alleged cause of action against the demurring defendant and the defendant José Lezama to cancel and set aside a certain instrument purporting to be an extension of a mortgage referred to in the complaint and to enjoin the demurring defendant and Lezama from wasting, endangering or interfering with the estate to the injury of the plaintiffs, is improperly joined with others. As before observed, an analysis of the allegation of the complaint shows that there is but a single cause of action, and that the prayer -for relief is moulded in such a way that the court may make such a decree as would protect the rights of the plaintiffs against all or either of the defendants with respect to the one single subject-matter of the suit, and that subject-matter is the protection or preservation of the property and assets of the estate of Robert Fernandez, deceased, in the hands of his executors, in which property and assets the plaintiffs are interested as remaindermen.

The real purpose of the action is not to procure an account and distribution of assets in the hands of the executors, but to invoke the power of a court of equity to interfere for the protection of the plaintiffs and to prevent the executor and a debtor of the estate alleged to be in collusion with the executor from despoiling the estate. The jurisdiction the court has, comes under the ordinary authority of a court of equity to protect beneficiaries of a trust against persons wrongfully and fraudulently dealing with the trust estate. That is a jurisdiction which cannot be exercised by the surrogate, for it does not pertain to him, but is vested in the Supreme Court alone.

As this complaint is drawn, the singleness of the cause of action appears from its material averments. After stating the relations of the parties and certain matters of inducement which lead up to the main motive of the suit, the plaintiffs allege that Robert Fernandez died leaving a last will and testament, of which one Peter V". Fernandez was made an executor, and that such executor received assets of great value, all of which were situated in the city of New York. Peter Y. Fernandez had the custody of those assets. The defendants José M. Fernandez and Andrew Fernandez were also executors of the will of Robert Fernandez. . They lived in Havana, Cuba, and had no part in the devastavit committed by their co-executor. They compelled him to make restitution to the estate and received from him a mortgage made by one Peter L. Fernandez upon a plantation in Cuba to secure the sum of $108,564. In 1895, that mortgage, and a few bonds of comparatively small value, constituted the whole assets of the estate of Robert Fernandez in the hands of the executors, who were then the defendant José M. Fernandez and Andrew Fernandez. As against the latter no wrong is charged, but he is made a party simply in his representative capacity. In the fall of 1895, the $108,564 mortgage being past due, Andrew Fernandez, as executor, undertook to realize the amount of it in order that the same might be remitted to the State of New York to be invested. He took steps to foreclose that mortgage in Cuba by instituting a suit for foreclosure, which suit could not be maintained because of a provision of the Spanish law which prevents one of two or more executors separately suing to foreclose a mortgage. José M. Fernandez would not join in the action in Cuba, but neglected and refused to do so, and subsequently, and in June, 1896, José JM. Fernandez, of his own motion, according to the allegations of the complaint, entered into an agreement with José Lezama, the present owner of the Cuban plantation upon which the mortgage was given, whereby José M. Fernandez, assuming to- act as executor, and in consideration of a gross sum to be paid to him annually by Lezama in lieu of interest on the mortgage, extended the time of payment of the principal sum of the mortgage for a period stated to be for the “ harvesting of eight crops,” which is alleged to he in effect an extension for an indefinite period, for the reason that the standard for each crop in the agreement is fixed at a larger quantity of product than has heretofore been raised upon the plantation in any one crop. That instrument makes no provision for a guaranty on the part of Lezama of the amount of the mortgage, but expressly provides that if at any time the improvements on the plantation are destroyed or burned lie may surrender the lands to the defendant executors without being liable under the terms of the mortgage or extension. It is charged in the complaint that that agreement is fraudulent and collusive, was made by José M. Fernandez for the purpose of obtaining a personal benefit or gain to himself and to the irreparable injury of the plaintiffs, their rights and inheritance, and that their property is put in imminent peril; that the property consists of the plantation with very valuable buildings and machinery, with railways and appurtenances; that it is situated in a country now in insurrection and is liable to be devastated and wasted and the interests of the plaintiffs entirely destroyed. The complaint then alleges that the plaintiffs will suffer irreparable injury unless they have relief in a court of equity; that they have no adequate remedy at law, and that there is no way in an action or otherwise in the Surrogate’s Court to furnish them relief, and that they cannot obtain it in the courts of Cuba.

The foregoing is a synopsis of all the material allegations of the complaint, and from it it is obvious that a court of equity has power and' jurisdiction to afford some relief. The real matter in controversy relates to the transaction between José If. Fernandez as executor and Lezama. All that is to be criticised in the complaint is the prayer for relief. Too much may be asked, but that does not make the complaint multifarious nor divisible into different causes of action. The court may, upon the facts, decree that the transaction between José M. Fernandez as executor and Lezama was fraudulent and void, and that the instrument of extension should be canceled. It may also decree that the executor, José 1VI. Fernandez, in case the instrument is one obligatory upon the estate, should give security for any loss that may occur to the estate by reason of the agreement, and in order that such security may be given, it may become necessary, as incidental to the main purpose of the complaint, that he should be made to account for his dealings generally with the estate. It is also competent for the court to decree that he be removed as executor and, in consequence, account for his wrongful dealing with the mortgage. As said before, the main purpose of the suit is to procure the cancellation of the agreement extending the mortgage, and the other relief asked for is only appropriate as incidental to that main relief which the court may, upon an examination of the whole case, find it necessary to grant to protect the plaintiffs’ rights.

The demurrer was properly overruled and the interlocutory judgment appealed from should be affirmed, with costs.

Rumsey, O’Brien and Ingraham, JJ., concurred; Van Brunt, P. J., concurred in result.

Judgment affirmed, with costs.  